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3,200 | https://www.mspb.gov/decisions/nonprecedential/CHANDHOK_PROMOD_DC_0432_17_0812_I_9_REMAND_ORDER_2026745.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PROMOD CHANDHOK,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER S
DC-0432 -17-0812 -I-9
DC-513D -17-0813 -I-9
DATE: May 1, 2023
THIS ORDER IS NONPRECEDENTIAL1
Peter Broida , Esquire, Arlington, Virginia, for the appellant.
Paul Sanchez , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chair
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellan t has filed a petition for review of the initial decision,
which affirmed the denial of the appellant’s withi n-grade increase (WIGI) and
his removal from service . For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the in itial decision, DISMISS 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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’s appeal of his denied WIGI for lack of jurisdiction, and REMAND the
appellant’s appeal of his removal to the regional office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 In September 2017, the appellant filed a Board appeal challenging two
distinct actions —the December 2015 denial of his WIGI and his November 2016
removal from service. The matters were docketed separately. Chandhok v.
Department of Transportation , MSPB Docket No. DC -0432 -17-0812 -I-1, Initial
Appeal File (0812 IAF), Tab 1 at 6 -7; Chandhok v. Department of
Transportation , MSPB Docket No. DC -531D -17-0813 -I-1, Initial Appeal File
(0813 IAF), Tab 1 at 6 -7. However, they were joined for adjudication. 0812 IAF,
Tab 6; 0813 IAF, Tab 6.
¶3 During the lengthy period that followed the appellant’s initial filing, his
appeals were repeatedly dismissed without prejudice to accommodate the parties’
mediation efforts, settlement efforts, discovery, and other delays . E.g., Chandhok
v. Department of Transportation , MSPB Docket No. DC -0432 -17-0812 -I-5,
Appeal File (0812 AF -5), Tab 104; Chandhok v. Department of Transportation ,
MSPB Docket No. DC -0432 -17-0812 -I-9, Appeal File (0812 AF -9), Tab 1. Then,
in July 2020, th e administrative judge held a 5 -day hearing. E.g., 0812 AF -9,
Hearing Transcripts (HT1 -HT5). Finally, the administrative judge issued a single
initial decision that affirmed both of the agency’s actions —the appellant’s
removal and the prior denial of his WIGI. 0812 AF -9, Tab 70, Initial Decision
(ID).
¶4 The following facts, as further detailed in that initial decision, appear to be
undisputed. The appellant most recently held a GS -14 Mathematical Statistician
position within the agency’s Bureau of Transpo rtation Statistics (BTS). ID at 2.
In July 2015, the agency determined that the appellant’s performance was
unacceptable in one critical element, “Business Results,” causing his overall
3
performance rating to be unacceptable. Id.; 0812 AF -9, Tab 17 at 4 -9. Therefore,
the agency placed the appellant on a performance improvement plan (PIP) and
later withheld his scheduled WIGI. ID at 2; 0812 AF-5, Tab 90 at 4 -8, Tab 93
at 11-14.
¶5 At the conclusion of his PIP, which had been extended until
February 3, 2016, the agency determined that the appellant’s performance
remained unacceptable in the critical element of “Business Results.” ID at 3;
0812 AF -5, Tab 41 at 4 -10. The agency proposed his performance -based removal
for the same in June 2016. ID at 3; 0812 A F-5, Tab 40 at 4 -11. After the
appellant responded, the deciding off icial sustained the removal
in November 2016. ID at 3; 0812 AF -5, Tab 12 at 4 -9. The appellant then retired
in lieu of his removal. 0812 AF -5, Tab 13 at 4.
¶6 The appellant first challeng ed his denied WIGI and removal through the
equal employment opportunity (EEO) process. 0812 AF -5, Tabs 7 -10. He then
filed the instant appeals and raised claims of discrimination, EEO reprisal, and
harmful procedural errors. ID at 3 -4.
¶7 The administrativ e judge found that the agency met its burden regarding
both the denied WIGI and the removal action. ID at 4 -39. She further found that
the appellant failed to meet his burden regardi ng any affirmative defense.
ID at 39-48. Accordingly, the administrati ve judge sustained the agency’s
actions. ID at 48 -49.
¶8 The appellant has filed a petition for review. E.g., Chandhok v. Department
of Transportation , MSPB Docket No. DC -0432 -17-0812 -I-9, Petition for Review
(0812 PFR) File, Tab 3. The agency has filed a response , and the appellant has
replied. 0812 PFR File, Tabs 5 -6.
We must remand the appellant’s removal claim for further adjudication in light of
Santos .
¶9 At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an ap peal of a performance -based removal under chapter 43, the
4
agency must establish the following by substantial evidence: (1) the Office of
Personnel Management (OPM) approved its performance appraisal system and
any significant changes thereto; (2) the agen cy communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302 (b)(1); (4) the agency
warned the appellant of the inadequacies of his performance during the appraisal
period and gave him a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more of the critical elem ents for which he was provided an opportunity to
demonstrate acceptable performance.2 Lee v. Environmental Protection Agency ,
115 M.S.P. R. 533 , ¶ 5 (2010). Substantial evidence is the degree of relevant
evidence that a reasonable person, considering the record as a whole, might
accept as adequate to support a conclusion, even though other reasonable persons
might disagree. 5 C.F.R. § 1201.4 (p). The administrative judge found that the
agency met this burden and proved each of these elements. ID at 6 -28, 30 -39. As
further detailed below, we find no basis for disturbing t hese findings, but we must
remand for the parties to address one additional element , as described in Santos v.
National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021) .
OPM approved the agency’s performance appraisal system and
communicated to the appellant the performance standards and critical
elements of his position.
¶10 The agency submitted evidence regarding element 1 —that OPM approved
of its performance appraisal system. 0812 AF -5, Tab 100 at 21. Plus, the
appellant indicated that he did not contest that element. 0812 AF -9, Tab 45 at 4.
2 Although Lee provides that performance standards must be valid under 5 U.S.C.
§ 4302 (b)(1), the National Defense Authorization Act of 2018 redesignated
subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91, § 1097(d)(1)(A),
131 Stat. 1283, 1619 (2017). Accordingly, 5 U.S.C. § 4302 (c)(1) now sets forth the
statutory requireme nts for a valid performance standard.
5
¶11 Regarding element 2 —that the agency communicated to the appellant the
performance sta ndards and critical elements of his position —there also appears to
be no dispute. Among other things, the record includes the appellant’s
performance plan for the period between June 2014 and May 2015, signed by the
appellant in December 2014 as part of h is mid -year review and containing a
notation that he had refused to sign the same at the start of the performance year.
E.g., 0812 AF -9, Tab 17 at 4 -9. Although we found no explicit indication that the
appellant was conceding this element, he did not pre sent any substantive
argument about the matter in his final brief b elow, 0812 AF -9, Tab 63, or in
his petition for review , 0812 PFR File, Tab 3.
¶12 For these reasons, we agree with the administrative judge’s conclusion that
the agency met its burden regarding elements 1 and 2. ID at 6 -8, 16 -17.
The appellant’s performance standards were valid.
¶13 One of the appellant’s primary arguments on review concerns element 3,
the validity of the agency’s performance standards. 0812 PFR File, Tab 3 at
6-13. In summary, t he appellant has alleged that the performance standards at
issue in this appeal were impermissibly absolute and impermissibly subjective.
Id. at 8-13.
¶14 An absolute standard is one where a single incident of p oor performance
will result in an unsatisfactory rating on a critical element. Henderson v.
National Aeronautics and Space Administration , 116 M.S.P.R. 96 , ¶ 12 n.2
(2011). The statutory scheme for performance -based actions does not preclude
the use of absolute performance standards, so long as those standards are
objective and tailored to the specific requirements of the positio n. Id.; Jackson v.
Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶¶ 13, 15 (2004).
¶15 The appellant argues that, although the sta tutory scheme for a
performance -based removal does not prohibit absolute performance standards, the
agency’s policies did. 0812 PFR File, Tab 3 at 8 -12. In particular, agency policy
about performance standards indicates that performance s hould be measured in
6
terms of timeliness, but the timeliness standard “must not be absolute,” 0812
AF-9, Tab 12 at 70, while the agency’s collective bargaining agreement provides
that performance management systems “will not apply absolute performance
standards except where they are crucial to the mission,” 0812 AF -9, Tab 7 at 7 -8.
¶16 The appellant suggests that the performance standards from his performance
plan and PIP violate those policies, the agency was not permitted to cure the
alleged violations throug h subsequent communications, and we should not subject
these alleged violations to a harmful error analysis. 0812 PFR File, Tab 3
at 6-12. In other words, the appellant argues that we should exclusively look to
the performance plan and PIP to determine w hether the agency violated internal
policy and, if we find that it did, we should reverse his removal, regardless of
whether he can prove that the violation was harmful.
¶17 We disagree with the appellant’s argument regarding what we should
review while consid ering the validity of his perf ormance standards. Although
he suggests that we should not look past the four corners of his performance plan
and PIP, the appellant has not directed us to anything requiring the same. Nor has
he squared that argument with B oard precedent to the contrary. The Board has
routinely recognized that an agency may cure otherwise fatal defects in the
development and communication of performance standards by communicating
sufficient information about the performance requirements at the beginning of,
and even during, the PIP. Henderson , 116 M.S.P.R. 96 , ¶ 18; see Town ,
120 M.S.P.R. 239 , ¶ 23 (finding that an agency can and did cure any improper
vagueness in its performance standards through additional oral or written
communications); Thompson v. Department of the Navy , 89 M.S.P.R. 188 ,
¶¶ 18-19 (2001) (finding that even if an employee’s unmodified performance
standards were invalid, the agency cured them before the start of his PIP).
¶18 We also disagree with the appellant’s argument regarding the proper
analytical framework for considering any violation of agency policy. The
appellant directs us to Cross v. Departme nt of the Air Force , 25 M.S.P.R. 353 ,
7
358-59 (1984) , aff’d , 785 F.2d 320 (Fed. Cir. 1985), to assert that the harmful
error test does not apply to the agency’s alleged violation of its own policies
regarding absolute standards. 0812 PFR File, Tab 3 at 8 -11. But Cross merely
recognized that certain statutory requirements described in chapter 43 are not
subject to the harmful error test; it cannot be reasonably interpreted as reaching
the same conclusion abou t an agency’s internal policies regarding absolute
performance standards. Cross , 25 M.S.P.R. at 356 -59. Therefore, we find the
harmful error test appropriate. See Doe v. Department of Justice , 123 M.S.P.R.
90, ¶ 7 (2015) (recognizing that the Board will not sustain an agency decision if
the appellant proves a harmful error, i.e., a procedural error that was likely to
have caused the agen cy to reach a conclusion different from the one it would have
reached in the absence or cure of the error).
¶19 Regarding the performance standards at issue in this appeal, t he appellant’s
performance plan describes the relevant critical element as follows: “Business
Results . . . Under the direction of BTS project manager(s), successfully update
key DOT documentation for statistical standards and guidelines and
confidentiality procedures.” 0812 AF -5, Tab 96 at 7. It then identifies the three
documents to be updated —two agency manuals and one agency guide —while
providing several dated milestones for doing so, such as an initial review for
recommended updates, initial draft, second draft with edits incorporated, and
completion of the documents, edited to omi t errors and inconsistencies. Id. The
performance plan acknowledged that the appellant’s performance could be rated
as unacceptable, achieved results, exceeded expectations, or outstanding. Id.
¶20 Subsequent communications and documentation provided additi onal
context. For example, when the agency completed the appellant’s performance
appraisal for the period ending May 2015 and found his performance
unacceptable in this critical element, it included a lengthy narrative statement
devoted to the same. Id. at 12 -17. Among other things, this narrative describes
how the agency held periodic meetings with the appellant to provide “clear
8
expectations for each deliverable and due date,” along with a senior statistician
“to provide oversite and consultation” to t he appellant. Id. at 12. It also
describes how the agency reviewed “deadlines and deliverables” with the
appellant and “reminded [him] that these defined the standard for an ‘achieved
results’ rating.” Id. Then, the agency provided specific instances o f the appellant
submitting work and other agency officials responding with explanations for why
that work was deficient. Id. at 12 -17.
¶21 The PIP, itself, is another example of the agency providing additional
context to the relevant performance standards. 0 812 AF -5, Tab 90 at 4 -8. The
PIP tasked the appellant with completing that which he failed to finish during the
performance year —updates to the three documents listed for the Business Results
critical element. Id. Among other things, the PIP included th e following
explanation of that which was required to attain the necessary “achieved results”
rating:
Successfully finalize the revisions of the 3 documents listed in [the
critical element] within 111 days of the effective date of this PIP.
The final versions must incorporate all comments received to date.
These deliverables should also be generally free of grammatical
errors and style inconsistencies. If comments are not addressed, a
written, well -reasoned explanation must be timely provided and
agreed to by your supervisor.
Id. at 5. The PIP then provided a roadmap with new , dated milestones to
elaborate and explain the agency’s expectations in terms of factors such as
content, quality, and timeliness. Id. at 5 -7. Plus, as detailed in the initial
decision and throughout the record, the appellant’s supervisor regularly met with
the appellant to discuss her specific expectations and what more the appellant
needed to do to meet them. E.g., ID at 9 -12; 0812 AF -9, Tab 15 at 34 -36, 74 -76.
¶22 Although the appellant argues that his performance standards were absolute
and left no margin for error, we are not persuaded. None of the evidence
described above explicitly or implicitly requires perfection to reach the necessary
“achieved results” performance ratin g. The appellant’s strained interpretation to
9
the contrary is not one we adopt. As further described in the initial decision, it is
also not one shared by those measuring his performance. ID at 13 -15; HT3
at 83-89 (testimony of the proposing official) .
¶23 We further find that, even if the agency had a policy prohibiting absolute
standards, and even if the agency violated that policy, the appellant failed to
prove that the error was harmful. As detailed in the initial decision and discussed
below, the agenc y did not find the appellant’s performance unacceptable because
of any single mistake or single instance of untimeliness. It found his performance
unacceptable because of many mistakes and many missed deadlines. E.g., 0812
AF-5, Tab 41 at 7 -10.
¶24 Turning t o the appellant’s other set of arguments, that his performance
standards were impermissibly subjective, we first note that an agency is not
required to include in each performance standard specific indicators of quantity,
quality, and timeliness that are u sed to evaluate work. Henderson ,
116 M.S.P.R. 96, ¶ 23. Further, the fact that the performance standard may call
for a certain amount of subjective judgment on the part of the employee’s
supervisor does not automatically invalidate the standard. Id. The Board has
held that performance standards must be sufficiently precise and specific as to
invoke a general consensus as to the ir meaning and content and provide firm
benchmarks toward which the employee may aim h is performance. Id. And
again, as previously mentioned, the Board has also recognized that an agency may
cure otherwise fatal defects in the development and communicati on of
performance standards by communicating sufficient information regarding
performance requirements at the beginning of, and even during, the PIP.
Id., ¶ 18.
¶25 The appellant’s arguments on this point are also unavailing. It seems as if
the appellant is suggesting that the agency’s performance standards were
impermissibly subjective because they did not adequately define the number or
types of errors and delays t hat would be allowed under the “achieved results”
10
performance rating. 0812 PFR File, Tab 3 at 12 -13. We disagree. The
appellant’s performance plan and the PIP that followed tasked the appellant with
successfully updating three specific documents. E.g., 0812 AF -5, Tab 90 at 4 -8.
The agency repeatedly provided detailed descriptions of what was required to
attain the necessary “achieved results” rating for doing so, along with dated
milestones. Id. at 5-6; supra ¶¶ 20-22. The fact that these performance standards
call for a certain amount of subjective judgement on the part of the appellant’s
supervisor, such as her judgement as to whether the documents were “generally
free of grammatical errors,” is acceptable under the circumstances. This is
especiall y so because of the nature of the appellant’s position and work, as well
as the agency’s extensive feedback throughout the performance year and PIP. See
Diprizio v. Department of Transportation , 88 M.S.P.R. 73 , ¶ 10 (2001)
(recognizing that the degree of objectivity and specificity required in performance
standards depends on the job involved and with greater discretion and
independe nce on the part of an employee comes less objectivity and specificity in
their performance standards); see also Salmon v. Social Security Administration ,
663 F.3d 1378 , 1381 -82 (Fed. Cir. 2011) (finding performance standards were not
impermissibly subjective because, inter alia, the employee’s supervisor “gave
direct, precise feedback on the deficiencies in [the employee’s] work and clear
instruct ions on how to remedy them”).
¶26 For all these reasons, we agree with the administrative judge’s conclusion
that the agency proved element 3, the validity of its performance standards.
The appellant’s arguments to the contrary are not persuasive.
The agency warned the appellant of the inadequacies of his performance
and gave him a reasonable opportunity to demonstrate acceptable
performance.
¶27 Regarding element 4 —proof that the agency warned the appellant of the
inadequacies of his performance during the appra isal period and gave him
a reasonable opportunity to demonstrate acceptable performance —the
11
administrative judge found that the agency met its burden. ID at 17 -28. Among
other things, she determined that the agency provided close supervision and
extensiv e help to the appellant, throughout the relevant period, to no avail. Id.
The administrative judge also considered but rejected the appellant’s allegations
that his assignments were improper and his training was inadequate. Id.
¶28 On review, the appellant presents arguments that implicate this element and
associated claims of a harmful error. 0812 PFR F ile, Tab 3 at 13 -25. First,
he argues that the assignments underlying his unacceptable performance —to
update three documents —violated the applicable union contract because they
were not tied to his position. Id. at 13 -14. The administrative judge found
otherwise. ID at 20-25. Second, the appellant argues that the agency failed to
provide training in project management and technical writing that was requi red by
the union contract and performance management systems, 0812 PFR File, Tab 3
at 14 -19, as well as assistance that was promised during the PIP, id. at 19-24.
But again, the administrative judge found otherwise. ID at 25 -26, 28.
¶29 Regarding the allega tion that his assignments were not tied to his position,
the appellant has failed to specifically identify any evidence in the voluminous
record for support. See 5 C.F.R. § 1201.115 (a)(2) (providing that a petitioner
who alleges that the judge made erroneous findings of fact must explain why the
challenged factual determination is incorrect and identify specific evidence in the
record that demonstrates the error). Instead, he merely rea sserts that the
assignments underlying his unacceptable performance —updating three
documents —were atypical for him and better suited for someone with a different
set of skills. 0812 PFR File, Tab 3 at 13 -14. We are not persuaded by this
argument, particu larly in light of the administrative judge’s extensive analysis of
the same that included a discussion of the appellant’s position description, his
education, his prior authoring of a book, his experience within the agency, and his
experience as an adjunct professor. ID at 20 -25, 27.
12
¶30 Regarding the allegation that the agency failed to provide training that was
either required by contract or otherwise promised, the appellant’s arguments are
similarly unavailing. As to required training, the appellant has di rected us to
several resources, including statutes, regulations, Board precedent, Board reports,
agency policies, and union contract provisions. 0812 PFR File, Tab 3 at 14-19.
We have reviewed each but find that none required that the agency provide the
appellant with formal training before acting on his unacceptable performance.
For example, although the appellant has referenced 5 U.S.C. § 4302 (a), that
statute merely describes what performance appraisals should be used for, e.g.,
training but also decisions to remove an employee. In another example, the
appellant has recounted agency policies and union contract provisions regarding
performance, but each provides that training “may” be provided. 0812 PFR File,
Tab 3 at 15 -17. These and each of the other sources the appellant relies upon do
discuss training, but none mandates it under the circumstances. Plus, we note that
the appellant has now, in retrospect, identified his need for certain for mal
training, but he has not identified any instance of him doing the same prior to his
removal, when the agency repeatedly invited him to notify the agency if
he believed any particular training would be beneficial as he worked to improve
his performance. E.g., 0812 AF -5, Tab 90 at 4, 7, Tab 93 at 11, 13.
¶31 Turning to the appellant’s allegation of promis ed training, it is true that
an agency’s promise of assistance during the PIP and then failure to provide the
same may prevent the agency from meeting its burden in certain circumstances.
Corbett v. Department of the Air Force , 59 M.S.P.R. 288 , 290 (1993) . But again,
the appellant’s arguments on this point are not persuasive. The administrative
judge found that the agency provided the appellant with extensive assistance from
his supervisor and others during the relevant period, e.g., ID at 26, and the
appellant does not appear to argue otherwise. Instead, he seems to argue that
because the projects underlying his unacceptable performance were originally
planned to be group projects, he should have received assistance from the original
13
group members. 081 2 PFR File, Tab 3 at 19 -24. However, what may have
originally been planned as a group project became the appellant’s own project by
late 2014, id. at 20 -21, which was well before his 2015 rating of unacceptable, his
subsequent PIP, and his 2016 removal. Therefore, even if he did not receive
assistance from the individuals that may have been contemplated years earlier,
that is of no apparent consequence to the period and performance at issue in this
appeal.
The appellant’s performance remained unacceptable .
¶32 Regarding element 5 —proof that the appellant’s performance remained
unacceptable in one or more of the critical elements for which he was provided
an opportunity to demonstrate acceptable performance —the administrative judge
also found that the agency me t its burden. ID at 30 -39. In doing so,
she discussed and relied on extensive testimony of multiple witnesses, as well as
extensive documentary evidence, all reflecting how the appellant’s work for each
of the three documents the agency had tasked him wi th updating was deficient in
terms of substance, consistency, and overall quality. Id.
¶33 On review, the appellant seems to implicate this element of the agency’s
burden by asserting that the agency misconstrued his drafts with final products.
0812 PFR File , Tab 3 at 24 -25. But this is another instance of the appellant
suggesting that the agency was holding him to an impossible and absolute
standard, where he could not make even a single grammatical or stylistic error.
Id. For the reasons previously discu ssed, we find the argument unavailing and
unsupported by the evidence of record. Supra ¶ 23.
¶34 The appellant also argues that the administrative judge’s factual analysis
was materially incomplete. 0812 PFR File, Tab 3 at 26 -27. He refers us to
“many hou rs of testimony” about various pieces of documentary evidence, as well
as his post -hearing brief, asserting that the administrative judge referred to
neither in the initial decision. Id. However, an administrative judge’s failure to
mention all of the ev idence of record does not mean that she did not consider it in
14
reaching her decision. E.g., 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). Plus, despite the suggestion to the contrary, the administrativ e judge did
cite to and discuss at least some of the appellant’s testimony and closing brief for
this element and others. E.g., ID at 30, 31 n.8, 37 (referencing 0812 AF -9, Tab
63; HT5 at 35 (testimony of the appellant)). More broadly, the appellant has not
shown that the administrative judge erred in finding the agency’s evidence
persuasive and sufficient for purposes of its evidentiary burden in this appeal.
On remand, the agency must prove one additional element regarding the
appellant’s removal.
¶35 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings regarding the agency proving the elements
described above, we must remand this ap peal for the agency to prove
an additional element of its charge for its remo val action. During the pendency of
the petition for review in this case, the U .S. Court of Appeals for the Federal
Circuit held in Santos , 990 F.3d at 1360 -61, 1363, that in addition to the five
elements of the agency’s case set forth above, the agency mu st also “justify the
institution of a PIP” by proving by “substantial evidence that the employee’s
performance was unacceptable . . . before the PIP.”
¶36 The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless o f when the events took place. Lee v. Department
of Veterans Affairs , 2022 MSPB 11 , ¶ 16. Accordingly, we remand the appeal to
give t he parties the opportunity to present argument and additional evidence on
whether the appellant’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements. See id ., ¶¶ 15 -17. On remand, the
administrative judg e shall accept argument and evidence on this issue and shall
hold a supplemental hearing if appropriate. Id., ¶ 17.
15
On remand, the administrative judge must also make new findings about the
appellant’s EEO reprisal claim and one additional harmful error c laim, as
appropriate.
¶37 The administrative judge rejected the appellant’s numerous affirmative
defenses, which included claims of discrimination based on national origin, sex,
and age, reprisal for engaging in protected EEO a ctivity, and harmful error.
ID at 39-48. Except for the harmful error claims we discussed above, in
connection with the elements required for a performance -based action such as
this, the appellant has not reasserted his affirmative defenses on review.
His petition makes no substantive argument of discrimination or reprisal.
Nevertheless, f or the reasons that follow, we find that the administrative judge
must reconsider the appellant’s EEO reprisal claim, using the proper legal
standards. We also find that the administrative judge should consider one new
harmful error claim , if the appellant pursues it during the remand proceedings.
EEO Reprisal
¶38 The administrative judge found that the appellant’s claims of discrimination
based on national origin, sex, or age failed because the appel lant did not prove
that his national origin, sex, or age were a motivating factor in the denied WIGI
or removal. ID at 39 -45 (citing Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 42 (2015)).3 We find no basis for reaching a different
conclusion.
¶39 For his EEO reprisal claim, the administrative judge referenced the same
motivating factor standard in both an affirmative defense order and a portion of
the initial decision. ID at 40; Chandhok v. Department of Transportation , MSPB
Docket No. DC -0432 -17-0812 -I-4, Appeal File, Tab 5 at 2. However, as she
discussed the underlying allegations and facts, the initial decision cites a
3 Because the appellant here failed to prove his initial burden that national origin, sex,
or age played any part in the agency’s decision, we do not reach the question of
“but-for” caus ation . Pridgen v. Office of Management and Budget , 2022 MSPB 31 .
16
“genuine nexus” requirement. ID at 45 -48. That was not the correct standard to
apply. See, e.g. , Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492 ,
¶ 8 (2016) (describing one of the limited circumstances in which the genuine
nexus standard still applies). The correct standard for the appellant’s EEO
reprisal claim depends on the nature of the appellant’s EEO activit y, which is not
explicitly discussed in the initial decision. See, e.g. , Haas v. Department of
Homeland Security , 2022 MSPB 36 , ¶ 3 1(recognizing the differing standards for
Title VII -based reprisal claims and disabi lity-based reprisal claims) .
¶40 Although the appellant has not reasserted his EEO reprisal claim on review ,
the administrative judge on remand should determine the nature of the activity
underlying the appellant’s EEO reprisal claim to decide the appropriate burden of
proof. She should then apprise the parties of the same and issue new findings
under the appropriate standards.
Harmful Error
¶41 Though not raised by either party, we recognize that when the deciding
official sustained the appellant’s proposed remov al, he indicated that the
allegations described in the proposal were “supported by substantial evidence.”
0812 AF -5, Tab 12 at 7. It is not apparent, however, whether this was a
purposeful reference to the legal standard the Board applies when reviewing a
performance -based action under chapter 43. See 5 U.S.C. § 7701 (c)(1) (providing
that appeals of a chapter 43 performance -based action are subject to the
“substantial evidence” standard, while al l other cases must be supported by
preponderant evidence). We have not come across anything in the record to
suggest, for example, that the deciding official was instructed by agency policy to
apply the “substantial evidence” legal standard while consider ing the appellant’s
proposed removal.
¶42 During the period since the administrative judge issued the initial decision,
the Federal Circuit considered a somewhat comparable situation in an appeal
governed by 38 U.S.C. § 714 . Rodriguez v. Department of Veterans Affairs ,
17
8 F.4th 1290 (Fed. Cir. 2021). In that case, the deciding official seemed to apply
the “substantial evidence” to an employee’s proposed removal , and agency policy
seemed to dictate the same. Id. at 1297 n.3. The court, however, found that
preponderant evidence was the proper standard for the agency as it made its
deter mination on a proposed removal, and the underlying statutory scheme’s
reference to “substantial evidence” merely dictated the standard of review that the
Board would apply when reviewing the matter on appeal. Id. at 1296 -1301. In a
subsequent but similar case that was also governed by 38 U.S.C. § 714 , the Board
determined that such an error should be analyzed as a harmful error affirmative
defense. Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 22 -25.
¶43 Because Rodriquez and Semenov were issued after the initial decision and
petition for review in the instant app eal, the administrative judge should entertain
new arguments the appellant presents about the same during the remand
proceedings, if the appellant chooses to present any.
The administrative judge did not abuse her discretion in excluding a witness.
¶44 Below, the appellant requested several witnesses to testify. 0812 AF -9,
Tab 37 at 14 -15. The appellant described one as being able to testify about how
he used to supervise both the appellant and the appellant’s immediate supervisor.
Id. at 15. According to t he appellant, this individual would further testify about
how the appellant’s immediate supervisor was disinclined to work with the
appellant back then, when she was not his supervisor but was a colleague. Id.
¶45 Although the administrative judge approved th e others, she denied the
appellant’s request to call this witness. 0812 AF -9, Tab 45 at 4 -6. The appellant
objected and asked that the administrative judge reconsider, 0812 AF -9, Tab 47
at 4-5, but she denied that request as well, 0812 AF -9, Tab 53 at 1 -2. The
administrative judge reasoned that this proposed witness retired from the agency
approximately 14 years prior to the hearing and the information the appellant
wished to elicit from him was not relevant or material. Id.
18
¶46 An administrative judge has wide discretion under 5 C.F.R. § 1201.41 (b)(8)
and (10) to exclude witnesses where it has not been shown that their testimony
would be relevant, material, and nonrepetitious. Franco v. U.S. Postal Service ,
27 M.S.P.R. 322 , 325 (1985). On review, the appellant challenges the exclusion
of this proposed witness, reiterating arguments he made below. 0812 PFR File,
Tab 3 at 27 -29. He once again suggests that this proposed witness could have
provided testimony about the appellant’s performance and about possible animus
from the appellant’s supervisor. Id. But we remain unpersuaded that the
administrative judge abused her wide discretion. As the administrative judge
recognized, this individual’ s testimony about the appellant’s performance or the
parties’ working relationships 14 years earlier does not seem particularly relevant
to the issues at hand.
The Board lacks jurisdiction over the appellant’s denied WIGI.
¶47 All of the above analysis has con cerned the appellant’s removal action,
which is within the Board’s jurisdiction. However, the administrative judge also
adjudicated a denied WIGI. For the reasons that follow, we vacate the
administrative judge’s findings on that claim and instead find t hat the appellant
failed to prove that the Board has jurisdiction over the matter.
¶48 An employee earns a WIGI upon completion of the applicable waiting
period so long as, inter alia, he or she is performing at an acceptable level of
competence. 5 U.S.C. § 5335 (a). If an agency determines that an employee is not
performing at an acceptable level of competence and withholds a WIGI, the
employee is entitled to “an opportunity for reconsideration . . . within his [or her]
agency under uniform procedures prescribed by the Office of Personnel
Management.” 5 U.S.C. § 5335 (c). “If the determination [to withhold the WIGI]
is affirmed on reconsiderat ion, the employee is entitled to appeal to the Merit
Systems Protection Board.” Id. Thus, the Board can exercise jurisdiction over an
appeal from the withholding of a WIGI only if the agency has affirmed its initial
determination upon reconsideration or has unreasonably refused to act on a
19
request for reconsideration. Priselac v. Department of the Navy ,
77 M.S.P.R. 332, 335 (1998) .
¶49 In this case, the agency denied the appellant’s WIGI in December 2015.
0812 AF -5, Tab 93 at 11 -14. The letter advising of the same notified the
appellant of his rights and procedures. It explained that the appellant had 15 days
to request reconsiderat ion. Id. at 13.
¶50 At the time of his denied WIGI, the appellant already had a pending EEO
complaint regarding other matters. 0812 AF -5, Tab 8 at 6 -7. The record shows
that he added the denied WIGI to this EEO complaint by late February 2016.
Id. at 11 -12. In August 2017, the agency issued a Final Agency Decision (FAD)
about the denied WIGI. 0812 AF -5, Tab 10. Among other things, the FAD called
into question whether the appellant had requested reconsideration of the denied
WIGI and whether, as a resul t, the matter would be within the Board’s
jurisdiction. Id. at 6.
¶51 Within 30 days of that FAD, the appellant filed his Board appeals,
challenging his removal and the denied WIGI. 0812 IAF, Tab 1; 0813 IAF,
Tab 1. The administrative judge adjudicated both , and the initial decision
indicated that both were within the Board’s jurisd iction. ID at 1. However,
the initial decision contains no substantive discussion of the Board’s
jurisdictional limitations, including the requirement that the appellant first
requested reconsideration of his denied WIGI with the agency.
¶52 Given these facts, the Office of the Clerk of the Board sent the parties an
order, requesting arguments and evidence about the matter. 0812 PFR File, Tab
7. Both parties responded. The agency presented argument and evidence that it
searched but found no indication that the appellant requested reconsideration of
the agency’s decision to deny his WIGI. 0812 PFR File, Tab 9. The appellant
presented no argument or evidence to the contrary. 0812 PFR File, Tab 8.
Instead, the appellant has essentially argued that the Board should waive its
20
jurisdictional limitations due to the time, energy, and costs associated with
pursuing the matter up to this point. Id. at 4 -6. That argument is unavailing.
¶53 Under these circumstances, we must vacate the administrative judge’s
analysis of the appellant’s denied WIGI. The appellant failed to meet his
jurisdictional burden for that claim. See Winns v. U.S. Postal Service ,
124 M.S.P.R. 113 , ¶ 7 (2017) (recognizing that the Board’s jurisdiction is limited
to those matters over which it has been given juri sdiction by law, rule, or
regulation, and that an appellant bears the burden of proving jurisdiction by
preponderant evidence) , aff’d sub nom. Williams v. Merit Systems Protection
Board , 892 F.3d 1156 (Fed. Cir. 2018) .
Conclusion
¶54 In conclusion, the appellant failed to meet his burden of proving that the
Board has jurisdiction over the agency’s decision to deny him a WIGI. The
appellant also faile d to present any persuasive arguments on review regarding his
removal. Nevertheless, we must remand for further adjudication of certain
matters associated with his removal appeal.
¶55 On remand, the administrative judge shall accept argument and evidence on
the additional element described in Santos , and she shall hold a supplemental
hearing if appropriate. Lee, 2022 MSPB 11 , ¶ 17. The ad ministrative judge shall
then issue a new initial decision. See id . If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on the other elements of the agency’s case.
See id.; supra ¶¶ 10-34.
¶56 In her remand initial decision, the administrative judge may also
incorporate her prior findings as to the appellant’s affirmative defenses, except
those about the appellant’s EEO reprisal claim, which must be revisited to apply
the a ppropriate standard. Supra ¶¶ 39-40. The administrative judge must also
address any new arguments the appellant may present about Rodriquez , Semenov ,
and the deciding official’s reference to “substantial evidence.” Supra ¶¶ 41-43.
21
¶57 Regardless of whether the agency meets its burden for the additional
element required under Santos , if the argument or evidence on remand regarding
the appellant’s pre -PIP performance affects the administrative judge’s analysis of
the appellant’s affirmati ve defenses, she should address such argument or
evidence in the remand initial decision. See Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision must
identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests).
ORDER
¶58 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.4
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
4 As explained above, we find that the Board lacks jurisdiction over the appeal of the
WIGI denial at issue in MSPB Docket No. DC -531D -17-0813 -I-9. However, in order to
efficien tly process these appeals, w e remand both . See 5 C.F.R. § 1201.117 (a)(5). The
administrative judge should incorporate our jurisdictional findings concerning the WIGI
denial into the remand initial decision and provide review rights for both appeals. | CHANDHOK_PROMOD_DC_0432_17_0812_I_9_REMAND_ORDER_2026745.pdf | 2023-05-01 | null | S | NP |
3,201 | https://www.mspb.gov/decisions/nonprecedential/DABNER_CINDY_M_CH_0752_18_0572_I_1_FINAL_ORDER_2026754.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-0752 -18-0572 -I-1
CH-1221 -19-0175 -W-1
DATE: May 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Feasterville, Pennsylvania, for the appellant.
Debra K. Smith , Esquire, and Leora Tyree , Esquire, Chicago, Illinois, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision affirming
her removal and a petition for review of the initial decision dismissing her
individual right of action (IRA) appeal for lack of jurisdiction. We JOIN 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
appeals under 5 C.F.R. § 1201.36 (b) because doing so will expedite processing
without adversely affecting the interests of the parties. For the reasons set forth
below, the appellant’s petition s for review are DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 On September 10, 2018, the appellant filed an appeal of her removal with
the Board’s Central Regional Office . Dabner v. Environmental Protection
Agency , MSPB Docket N o. CH -0752 -18-0572-I-1, Appeal File ( I-1 AF), Tab 1.
On January 29, 2019, during the pendency of her removal appeal, the appellant
filed an IRA appeal with the Central Regional Office . Dabner v. Environmental
Protection Agency , MSPB Docket N o. CH -1221 -19-0175 -W-1, Appeal File
(W-1 AF), Tab 1 . The appellant registered as an e -filer in both appeals. I -1 AF,
Tab 1 at 2; W -1 AF, Tab 1 at 2.
¶3 After the records closed , on May 13, 2019, the administrative judge issu ed
initial decisions in both appeals. I -1 AF, Tab 70, Initial Decision (I -1 ID) ;
W-1 AF, Tab 29, Initial Decision (W -1 ID). She affirmed the agency’s removal
action on the merits, I -1 ID at 1, 71, and she dismissed the IRA appeal for lack of
jurisdiction , W-1 ID at 1 -2, 25. The initial decisions notified the appellant of her
appeal rights, including her right to file a petition for review with the Board.
I-1 ID at 71 -79; W -1 ID at 26 -33. Each initial decision also notified the appellant
that, unless sh e received the decision more than 5 days after it was issued, the
deadline for filing a petition for review would be June 17, 2019. I-1 ID at 71 ;
W-1 ID at 26 . The initial decisions were served electronically on both the
appellant and her representative the day they were issued. I -1 AF, Tab 71;
W-1 AF, Tab 30.
¶4 On June 18, 2019, at 12:57 a.m. Eastern Time, the appellant filed a petition
for review of the initial decision in the removal appeal. Dabner v. Environmental
Protection Agency , MSPB Docket No. CH-0752 -18-0572-I-1, Petition for Review
3
File (I-1 PFR File) , Tab 1 at 2, Tab 2 at 5. Later o n June 18, 2019, at 12:59 a.m.
Eastern Time, the appellant filed a petition for review of the initial decision in the
IRA appeal. Dabner v. Environmental Protect ion Agency , MSPB Docket
No. CH-1221 -19-0175 -W-1, Petition for Review File (W-1 PFR File) , Tab 1.
¶5 The Clerk of the Board notified the appellant that her petitions appeared to
be untimely filed and directed her to show good cause for the delay. I -1 PFR
File, Tab 1 at 2; W -1 PFR File, Tab 1 at 3. The appellant merely responded
“Eastern standard time v. Central” and “East v central time” respectively.2
I-1 PFR File, Tab 1 at 2; W -1 PFR File, Tab 1 at 4. The Clerk of the Board then
notified the appellant o f the applicable regulation, which states that “[a]ll
pleadings filed via e -Appeal Online are time stamped with Eastern Time, but the
timeliness of a pleading will be determined based on the time zone from which
the pleading was submitted.” I -1 PFR File, Tab 1 at 2 ; 5 C.F.R. § 1201.14 (m).
The appellant subsequently explained , in the context of her removal appeal, that :
[T]he original PFR was submitted from Philadelphia on June 18,
2019 at 12:57 AM, EST; thus the time stamp is one hour ahead of the
Central Time, where the Board’s Central Regional Office is located
and to which this appeal belongs. The original PFR was time
stamped on the Eastern Standard Time which is one hour ahead of
the Central Standard Time, which is controlling.
I-1 PFR File, Tab 2 at 5. The agency has responded to the petitions for review,
opposing them on both timeliness and substantive grounds. I -1 PFR File, Tab 4;
W-1 PFR File, Tab 3.
ANALYSIS
¶6 A petition for review must be filed within 35 days after the initial decision
is issued or, if the appellant shows that she received the initial decision more than
5 days after it was issued, within 30 days a fter the date of receipt. Williams v.
2 We take official notice that Daylight Saving Time rather than Standard Time was in
effect on the dates in question. See 5 C.F.R . § 1201.64 .
4
Office of Personnel Management , 109 M.S.P.R. 237 , ¶ 7 (2008); 5 C.F.R.
§ 1201.114 (e).
¶7 In this case, we find the petition s for review w ere untimely filed. The
appellant is a registered e -filer, and the initial decision s were served on her and
her representative electronicall y on May 13, 2019 —the date that they were
issued. I -1 AF, Tab 1 at 2 , Tab 71 ; W-1 AF, Tab 1 at 2 , Tab 30 ; see 5 C.F.R.
§ 1201.4 (i)-(n). Therefore, the filing deadline was June 17, 2019 . See 5 C.F.R.
§ 1201.114 (e) (setting forth a 35 -day deadline for filing a petition for review).
As indicated by the time stamp s, the appellant filed her petition s for review on
June 18, 2019. I-1 PFR File, Tab 1 at 2, Tab 2 at 5; W -1 PFR File, Tab 1; see
5 C.F.R. § 1201.4 (l) (“The date of filing by e -filing is the date of electronic
submission.”). Under the Board’s r egulations, the time stamp might not be
controlling if the petitions were filed from outside the Eastern time zone.
5 C.F.R. § 1201.14 (m). However, the petitions for review in this case were filed
from Philadelphia, Pennsylvania, which is within the Eastern time zone. I -1 PFR
File, Tab 2 at 5; see 5 C.F.R. § 1201.64 . Although the appeals originated outside
the Eastern time zone at the Board’s Central Regional Office in Chicago, Illinois,
this fact is immaterial under the Board’s regulations.3 Because the petitions for
review were filed after midnight on June 18, 2018, based on the location from
which they were submitted , we find that they were both untimely by
approximately 1 hour.
¶8 The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the filing delay. Lawson v. Department of Homeland
Security , 102 M.S.P.R. 185 , ¶ 5 (2006); 5 C.F.R. §§ 1201.12 , 1201.114(g). To
establish good cause for an untimely filing, a party must show that she exercised
due diligence or ordinary prudence under the particular circumstances of her case.
3 Even if the location of the office receiving the filing were material, a petition for
review of an initial decision is filed with the Clerk of the Board, located in the Eastern
time zone at the Board’s Washington, D.C. Headquarters. 5 C.F.R. § 1201.114 (d).
5
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and her showing of due
diligenc e, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causa l relationship to her inability to timely file her
petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶9 In this case, the length of the filing delay was minimal, approximately
1 hour in each case. See Gaetos v. Department of Veterans Affairs , 121 M.S.P.R.
201, ¶ 6 (2014) (finding a 3½ -hour filing delay to be minimal). However, the
Board has consistently denied a waiver of its filing deadline in cases where the
delay is minimal and a good reaso n for the delay is not shown. Id. The apparent
cause of the delay was that the appellant’s experienced non -attorney
representative misunderstood the Board’s regulations. However, a
representative’s miscalculation of the filing deadline generally does not constitute
good cause for a filing delay. Day v. Department of Housing and Urban
Development , 50 M.S.P.R. 680 , 682 n.2 (1991), aff’d , 975 F.2d 870 (Fed. Cir.
1992) (Table). The regulation at issue in 5 C.F.R. § 1201.14 (m) is clear on its
face, and the appellant is responsible for her representative’s failure to unders tand
it. See McBurnett v. Department of the Army , 37 M.S.P.R. 395 , 397 (1988); cf.
Walls v. Merit Systems Protection Board , 29 F.3d 15 78, 1581 -84 (Fed. Cir. 1994)
(finding good cause to excuse a 2 -day filing delay that was caused by the pro se
appellant’s reasonable misunderstanding of ambiguous filing instructions ).
¶10 Accordingly, we dismiss the petition s for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition s for review. The initial decision s remain the final decision s of the
Board regarding IRA jurisdiction and the removal .
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 below do not represent a
statement of how courts will rule regard ing which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the ap plicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a p articular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for revie w with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you s ubmit a petition for 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
Addit ional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regar ding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judici al or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discri mination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 receiv es this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review purs uant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 allegation s of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the F ederal Circuit or any court
of appeals of competent jurisdiction.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,” 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
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, 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.
10
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 | DABNER_CINDY_M_CH_0752_18_0572_I_1_FINAL_ORDER_2026754.pdf | 2023-05-01 | null | S | NP |
3,202 | https://www.mspb.gov/decisions/nonprecedential/WIEGAND_BRANDON_T_PH_3443_21_0250_I_1_FINAL_ORDER_2026769.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANDON T. WIEGAND,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-3443 -21-0250 -I-1
DATE: May 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sara A. Austin , Esquire, York, Pennsylvania, for the appellant.
Thomas G. Kane , Esquire, Carlisle, Pennsylvania, 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 the appellant’s appeal of his nonselection for lack of jurisdiction .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The following facts, as further detailed in the initial decision, appear to be
undisputed. At the time relevant to this appeal, the appellant had several years of
experience as a GS -11 Curator of Firearms and Ordnance at the U.S. Army War
College in Carlisle, Pennsylvania. Initial Appeal File (IAF), Tab 13, Initial
Decisions (ID) at 1. In and around April 2017, the agency attempted t o fill a
GS-14 Museum Curator position at the U.S. Army Center of Military History in
Fort Belvoir, Virginia. ID at 2 -3.
¶3 The appellant applied, but the agency deemed him not qualified and
therefore did not refer him for further consideration. Id. In a p air of statements
made under the penalty of perjury, the Human Resources Specialist that handled
the vacancy announcement stated that she reviewed the appellant’s application
materials and determined that he lacked the specialized experience required for
the position. ID at 3 -4; IAF, Tab 5 at 71 -72, 110. Among other things, she stated
that he lacked 1 year of specialized experience at the GS -13 level or its
equivalent, and that he also lacked documentation showing that he had previously
3
managed a geograph ically dispersed work force. IAF, Tab 5 at 72. She also
provided similar deposition testimony. Id. at 80 -84.
¶4 The appellant first challenged his nonselection through the equal
employment opportunity (EEO) process, alleging disability discrimination and
EEO reprisal. ID at 4; IAF, Tab 5 at 30. In April 2021, an Administrative Judge
with the Equal Employment Opportunity Commission issued a summary judgment
in the agency’s favor. ID at 4; IAF, Tab 5 at 29 -36.
¶5 In June 2021, the appellant filed the instant appeal, similarly challenging
his nonselection, with the help of an attorney that continues to represent him on
review. ID at 4; IAF, Tab 1. The administrative judge dismissed the appeal,
without a hearing. ID at 1. He found that the appellant failed t o present
nonfrivolous allegations that the Board had jur isdiction over this matter. ID
at 8-11. The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, to which the appellant has replied.
PFR File, Tabs 3 -4.
¶6 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). In the case of a nonselection,
the Board lacks direct jurisdiction under 5 U.S.C. § 7512 . Becker v. Department
of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 5 (2007). However, an appellant may
appeal his nonselection by other statutory means, such as the Veterans
Employment Opportun ities Act of 1998 (VEOA), the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA), or through an individual right of action
(IRA) appeal under the Whistleblower Protection Act (WPA) and Whistleblower
Protection Enhancement Act of 2012 (WPEA). S ee id. An appellant may also
present an employment practices appeal or suitability appeal. See Sauser v.
Department of Veterans Affair s, 113 M.S.P.R. 403 , ¶ 6 (2010); Alvarez v.
Department of Homeland Security , 112 M.S.P.R. 434 , ¶ 6 (2009).
4
¶7 The administrative judge issued an order that recognized and explained
these limitations and exceptions. IAF, Tab 2 at 2 -5. The appellant responded,
through his attorney, asserting that the Board had jurisdiction over this appeal for
several reasons, inc luding some not related to the exceptions mentioned above.
IAF, Tab 3 at 7 -10. For example, he seemed to suggest that his allegations of
disability discrimination and prohibited personnel practices were sufficient to
establish jurisdiction over his nonse lection. Id. But it is well settled that the
Board does not have jurisdiction over discrimination claims absent an otherwise
appealable action. Pridgen v. Office of Management and Budget ,
117 M.S.P.R. 665, ¶ 7 (2012). Similarly, prohibited personnel practices under
5 U.S.C. § 2302 (b) are not an independent source of Boa rd jurisdiction. Id.
¶8 The administrative judge issued a second order, noting that the appellant
had failed to focus on the relevant exceptions to the Board’s general lack of
jurisdiction over nonselections. IAF, Tab 7 at 1. However, he acknowledged that
the appellant had implicated an employment practices claim and the
administrative judge, therefore, provided another explanation about the associated
standards. Id. at 1 -3. He instructed the appellant to present further argument and
evidence to satisfy t he appellant’s jurisdictional burden. Id. at 3. The appellant
responded again, with some arguments about the same. IAF, Tab 8 at 17 -22.
¶9 Following the two orders on jurisdiction and two responses, the
administrative judge held a status conference. The a ssociated summary indicated
that the appellant was pursuing an employment practices claim, along with claims
under 5 U.S.C. § 2302 (b)(8) -(9), which would require exhaustion with the Office
of Speci al Counsel (OSC). IAF, Tab 11; see Yunus v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) (recognizing that the jurisdictional
burden in an IRA appeal alleging whistleblower retaliation includes proving that
an appellant has exhausted his administrative remedies before the OSC).
Thereafter, the appellant filed his third pleading about jurisdiction and the scope
of this appeal. IAF, Tab 12. He indicate d that this appeal concerns the
5
employment practices provisions and 5 U.S.C. § 2302 (b)(9)(A)(ii). Id. at 4. The
appellant identified no other basis under which he believed the Board had
jurisdict ion.
¶10 In the initial decision, the administrative judge considered the appellant’s
most recent clarification of his appeal, regarding employment practices and
section 2302(b)(9)(A)(ii), and found that the Board lacked jurisdiction. ID
at 6-11. To the exte nt that the appell ant had attempted to present an employment
practices claim, the administrative judge found that the Board did not have
jurisdiction because the appellant’s allegations did not implicate the Office of
Personnel Management (OPM) and because his allegations were directly related
to an individual hiring decision, rather t han an employment practice. ID at 8-11.
To the extent that the appellant separately relied on section 2302(b)(9)(A)(ii), the
administrative judge explained that claims under that provision are not
independently appealable to the Board. ID at 7 -8, 11.
¶11 On review, we first note that the appellant’s petition includes hundreds of
pages of evidence. Some is a copy of evidence presented below. Compare PFR
File, Tab 1 at 260 -71, with IAF, Tab 5 at 74 -97. But most is new evidence
submitted for the first time on review. PFR File, Tab 1 at 29 -258. It consists of
an investigative report stemming from his 2017 EEO complaint about the
nonselection, which the administrative judge reco gnized as absent from the record
below. Id.; ID at 2 n.1, 3. We found nothing to explain why the appellant
submitted this evidence for the first time on review and no basis for concluding
that it is new and material. See Cleaton v. Department of Justice , 122 M.S.P.R.
296, ¶ 7 (2015) (recognizing that the Board generally will not consider evidence
submitted for the first time on review absent a showing that: (1) the documents
and the information contained in the documents were unavailable before the
record closed despite due diligenc e; and (2) the evidence is of sufficient weight to
warrant an outcome different from that of the initial decision), aff’d , 839 F.3d
1126 (Fed. Cir. 2016).
6
¶12 We next note that t he appellant faults the administrative judge for not
mentioning disability discrimination in the initial decision. PFR File, Tab 1
at 18-19. However, as described above, the appellant seemed to narrow the scope
of his jurisdictional claims after being no tified of the Board’s jurisdictional
limitations. IAF, Tab 12 at 4. More importantly, as also described above, the
Board lacks jurisdiction over a claim of disability discrimination in the absence
of an otherwise appealable action. Compare Pridgen , 117 M.S.P.R. 665 , ¶ 7
(finding that the Board could not consider the appellant’s discrimination claim in
concert with an appeal of h er nonselection, where the Board lacked jurisdiction
over the nonselection), with Wren v. Department of the Army , 121 M.S.P.R. 28 ,
¶¶ 13 -15 (2014) (remanding a removal appeal for further adjudication of an
appellant’s disability discrimination claim, where the Board had jurisdiction over
the removal).
¶13 The appellant’s petition also includes cursory references to the merit system
princip les, prohibited personnel practices, and suitability. PFR File, Tab 1
at 22-23. But there is nothing about these references that implicates Board
jurisdiction over the appellant’s nonselection. See, e.g. , Alvarez , 112 M.S.P.R.
434, ¶¶ 6 -7 (explaining the suitability actions appealable to the Board and
recognizing that a nonselection for a specific position is not a suitability ac tion).
¶14 The remainder of the appellant’s petition appears to focus on his claim that
the Board has jurisdiction over this matter as an employment practices appeal.
PFR File, Tab 1 at 19 -28. An applicant for employment who believes that an
employment pract ice applied to him by OPM violates a basic requirement set
forth in 5 C.F.R. § 300.103 is entitled to appeal to the Board. Burroughs v.
Department of the Army , 116 M.S.P.R. 292 , ¶ 15 (2011); 5 C.F.R. § 300.104 (a).
The Board has jurisdiction over an employment practice claim under 5 C.F.R.
§ 300.104 (a) when the following two conditions are met: (1) the appeal must
concern an employment practice that OPM is involved in administeri ng; and
(2) the appellant must make a nonfrivolous allegation that the employment
7
practice violated one of the “basic requirements” for employment practices set
forth in 5 C.F.R. § 300.103 . Burroughs , 116 M.S.P.R. 292 , ¶ 15. An agency’s
misapplying a valid OPM requirement may constitute an appealable employm ent
practice action. Scott v. Department of Justice , 105 M.S.P.R. 482 , ¶ 10 (2007).
The term “employment practices” includes the development and use of
examinations, qualification standards, tests, and other measurement instruments.
Id.; 5 C.F.R. § 300.101 . Although that term is to be construed broadly, “an
indiv idual agency action or decision that is not made pursuant to or as part of a
rule or practice of some kind does not qualify as an ‘employment practice.’”
Prewitt v. Merit Systems Protection Board , 133 F.3d 885 , 887 (Fed. Cir. 1998).
¶15 Once again, the appellant reportedly lacked at least two things required of
the GS -14 vacancy for which he was not selected —experience managing a
geographically dispersed workforce and GS -13 or equivalent experience. IAF,
Tab 5 at 72. It seems that the crux of the appellant’s argument is that the agency
needlessly added the “supervision of a dispersed workforce” qualification
standard. PFR File, Tab 1 at 19 -25. He also seems to suggest, witho ut
substantive explanation, that he did not have the requisite year of GS -13
experience but he nevertheless had equivalent experience that should have been
deemed sufficient for the GS -14 vacancy. Id. at 26 -27.
¶16 We have considered the appe llant’s arguments but we do not find them
persuasive . Although it is apparent that the appellant disagrees with his
nonselection, his claims do not establish or nonfrivolously allege Board
jurisdiction over this matter as an employment practices appeal.
¶17 Specific to his argument about the prior management of a geographically
dispersed workforce qualification standard, the appellant has presented nothing of
substance to suggest that this was an employment practice that OPM is involved
in administering. To the contrary, th e appellant repeatedly describes this standard
as one that the agency added on its own, separate from any qualification standards
by OPM. E.g., id. at 6 -14, 19. Plus, even if the appellant had indicated that this
8
qualification standard was one in which O PM was involved, it is not apparent to
us why the appellant believes the standard would violate one of the “basic
requirements” for employment practices set forth in 5 C.F.R. § 300.103 . By his
own telling, the vacancy at issue was a GS -14 position that would oversee 13
Army museums. PFR File, Tab 1 at 7. Without any substantive argument to the
contrary, prior experience managing a geographically dispersed workforce seems
rather prudent.
¶18 Specific to the appellant’s arguments about his past experience and whether
it sufficed for the GS -14 position, these are best characterized as a challenge to
the agency’s individual hiring decision, rather than an employment practice. The
appellant doe s not clearly implicate any employment practice that OPM is
involved in administering which violates one of the “basic requirements” for
employment practices set forth in 5 C.F.R. § 300.1 03 when he alleges that his
personal experience should have been deemed comparable to GS -13 experience.
See Banks v. Department of Agriculture , 59 M.S.P.R. 157 , 159 -60 (1993)
(recognizing that an appellant was challenging his nonselection and alleging
irregularities in the selection process, including ones about the agency tailoring
the job requirements for a different candidate, but finding he did not meet his
burden of establishing Board jurisdiction over the claims as an employment
practices appeal), aff’d , 26 F.3d 140 (Fed. Cir. 1994) (Table) . We recognize that
the appellant has summarily stated that the Human Resources official misapplied
OPM’s standards, b ut the assertion is not supported by any persuasive argument
or evidence. PFR File, Tab 1 at 15 -16, 27. For all these reasons, the appellant’s
petition for review is unavailing .
9
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 within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial re view of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 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.
10
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
11
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, 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
12
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for 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.
13
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 | WIEGAND_BRANDON_T_PH_3443_21_0250_I_1_FINAL_ORDER_2026769.pdf | 2023-05-01 | null | PH-3443 | NP |
3,203 | https://www.mspb.gov/decisions/nonprecedential/CARTER_KATHY_LYNN_DC_0752_21_0485_I_1_FINAL_ORDER_2026915.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHY LYNN CARTER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -21-0485 -I-1
DATE: May 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kathy Lynn Carter , Brandywine, Maryland, pro se.
Kevin Greenfield , 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 . For the reasons set forth below, we DISMISS the
appellant ’s petition for review as moot.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
¶2 The appellant was formerly employed as a GS -9 Acquisition and Financial
Support Specialist with the agency . Initial Appeal File (IAF) , Tab 13 at 10. On
May 21, 2021, the agency issued a decision removing the appellant based on a
charge of absence without leave with 21 specifications, and a charge of failure or
delay in carrying out written regulations, orders, rules, procedures, or
instructions, with 23 specifications.3 IAF, Tab 13 at 18 -24.
¶3 The appellant filed a Board appeal challenging her removal , and in an
October 28, 2021 initial decision, the administrative judge sustained both charges
and all of the underlying specifications, det ermined that the appellant failed to
prove her harmful procedural error affirmative defense, found a nexus between
the sustained charges and the efficiency of the service, and concluded that the
removal penalty did not exceed the tolerable limits of reason ableness. IAF,
Tab 18, Initial Decision (ID) at 3 -18. Accordingly, the administrative judge
affirmed the removal action and notified the parties that the initial decision would
become final on December 2, 2021 , unless either party filed a petition for re view
by that date . ID at 1, 20.
¶4 The appellant filed a petition for review of the initial decision through the
Board ’s e-Appeal Online system on December 3, 2021 , at 12:23 a.m., 23 minutes
after the deadline for doing so. Petition for Review ( PFR ) File, T ab 1. The
Office of the Clerk of the Board issued a letter to the appellant acknowledging
her petition for review , explaining that it appeared untimely , and providing the
appellant with an opportunity to submit a motion concerning timeliness on or
before December 18, 2021 . PFR File, Tab 3 at 1-2, 7-8 (citing 5 C.F.R.
§ 1201.114 (g)). The appellant failed to submit a motion or any other response to
the Office of the Clerk’s letter .
3 The agency subsequently issued an amended decision letter on May 24, 2021, which
still sustained the removal but changed the effective date from May 21, 2021, to June 4,
2021. IAF, Tab 13 at 11 -17.
3
¶5 On December 27, 2021, t wenty -four days after the appellant’s filing of her
untimely petition for review with the Board, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) notified the Board that the appellant filed a
pleading asking the court to review her Board appeal . Notice of Docketing ,
Carter v. Department of Defense , No. 2022 -1305 (Fed. Cir. Dec. 27, 2021) . On
June 14, 2022, the Federal Circuit issued a decision that deemed the initial
decision in this appeal the Board ’s final decision because the appellant failed to
file a petition for review with the Board within 35 days. Carter v. Department of
Defense , No. 2022 -1305, 2022 WL 2128592, at *2 (Fed. Cir. Ju ne 14, 2022) , cert.
denied , 143 S. Ct. 490 (2022) . The court further found that the administrative
judge ’s findings sustaining the agency removal action, that the agency established
nexus , and that the removal penalty was reasonable were all supported by
substantial evidence. Id. at *4 -5. Consequently, the court concluded that the
Board ’s decision was not arbitrary, capricious, an abuse of discretion, or contrary
to law , and affirmed the decision.4 Id. at *1.
¶6 A case is moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal
Service , 124 M.S.P.R. 40 , ¶ 8 (2016). An appeal w ill be dismissed as moot if, by
virtue of an intervening event, the Board cannot grant any effectual relief in favor
of the appellant. Id.
¶7 Here, the Federal Circuit ’s opinion affirming the final Board decision has
rendered the appellant ’s petition for rev iew with the Board moot. The court
acknowledged that the appellant ’s petition for review with the Board was
untimely and further found that the administrative judge correctly affirmed the
agency removal action . Carter , No. 2022 -1305, 2022 WL 2128592, at *1-2. In
light of that intervening event —a decision by the Federal Circuit —it is not
4 The appellant filed a petition for panel rehearing, which the court denied in a per
curiam order dated July 14, 2022. Order Denying Petition for Panel Rehearing, Carter
v. Department of Defense , No. 2022 -1305 (Fed. Cir. July 14, 2022) .
4
necessary for us to further consider the timeliness of the appellant ’s petition or
the administrative judge ’s finding affirming the removal action . Accordingly, we
dismi ss the petition for review as moot.
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 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 that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, yo u must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
6
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC ’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative 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
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board ’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D), ” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
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
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 d ecisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | CARTER_KATHY_LYNN_DC_0752_21_0485_I_1_FINAL_ORDER_2026915.pdf | 2023-05-01 | null | DC-0752 | NP |
3,204 | https://www.mspb.gov/decisions/nonprecedential/HERNANDEZ_STRADER_OLGA_DC_0752_16_0748_I_1_FINAL_ORDER_2026157.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
OLGA HERNANDEZ -STRADER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -16-0748 -I-1
DATE: April 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Maxwell Selz , APO , AE, 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 appeal challeng ing a reassignment from a full -time position to a
part-time one for lack of Board jurisdiction based on the administrative judge ’s
determination to give preclusive effect to an Equal Employment Opportunity
Commission (EEOC) decision finding that the appellant’s reassignment was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
voluntary or, alternatively, that the appellant failed to make a nonfrivolous
allegation of involuntariness. Generally, we grant petitions such as this one only
in the following circumstances: the in itial 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 e ither the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available th at, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully co nsidering the filings in this appeal, we conclude that 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 B oard’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On petition for review, the appellant argues , among other things, that her
reassignment was involuntary, that the agency reassigned her without affording
her due process, and that collateral estoppel did not apply. We disagree. The
administrative judge in this appeal properly gave collateral estoppel effect to an
EEOC administrative judge’s initial decision finding that the appellant so ught and
voluntarily accepted a reassignment to a part -time position. Initial Appeal File
(IAF), Tab 26, Initial Decision (ID) at 3-4; IAF, Tab 1 at 8-21; see Peartree v.
U.S. Postal Service , 66 M.S.P.R. 332 , 336 -37 (1995) . The administrative judge
also correctly found that, even if collateral estoppel did not apply, the appellant
failed to nonfrivolously allege that her change to a part -time status was
involuntary. ID at 4-5. Because the action was voluntary, the appellant was not
entitled to the procedural prot ections set forth at 5 U.S.C. § 7513 and in the
Constitution. Rivera v. Department of Homeland Security , 116 M.S.P.R. 429 ,
¶ 16 (2011) (finding that the Board lacked jurisdiction over the appellant’s age
3
discrimination and due process claims in light of its lack of jurisdiction over the
underlying termination) . The fact that the agency purportedly failed to comply
with the precise procedures for documenting the appel lant’s reassignment is of no
import as the record shows that she voluntarily sought and accepted the
reassignment , and thus the Board lacks jurisdiction over the appeal. Also,
because the Board lacks jurisdiction over this appeal, contrary to the appellan t’s
assertions, this is not a mixed case. Wren v. Department of the Army , 2 M.S.P.R.
1, 2 (1980) (holding that prohibited personnel practices under 5 U.S.C. § 2302 (b)
are not an independent source of Board jurisdiction), aff’d , 681 F.2 d 867 , 871 -73
(D.C. Cir. 1982).
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 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision befor e
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | HERNANDEZ_STRADER_OLGA_DC_0752_16_0748_I_1_FINAL_ORDER_2026157.pdf | 2023-04-28 | null | DC-0752 | NP |
3,205 | https://www.mspb.gov/decisions/nonprecedential/SMALLWOOD_CALVIN_DC_0752_17_0403_I_1_FINAL_ORDER_2026305.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CALVIN SMALLWOOD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -17-0403 -I-1
DATE: April 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steve Newman , Esquire, New York, New York, for the appellant.
Brandon L. Truman , Charlotte, North Carolina, 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 his appeal of his removal as settled. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fa ct; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 we re not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not avail able when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 alleges that his representative below did not
inform him that the misconduct he was charged with committing “ was not
sufficient for removal from a civil service position.” Petition for Review File,
Tab 2 at 3. To the extent that he seeks to have the settlement agreement declared
void, we find that his allegation does not constitute a sufficient basis for granting
his petition. It is well settled that an appellant is responsible for the handling of
his own appeal and for the actions or advice of his chosen representative.
Bohan v. U.S. Postal Service , 31 M.S.P.R. 601 , 603 (1986). Also, t he appellant
has presented no evidence that the execution of the settlement was in any way the
result of duress or bad faith negotiation on the agency’s part. Further, the terms
of the agreement appear to be freely made, fair, and the subject of mutual
consideration. Initial Appeal File, Tab 6 at 4 -7. Accordingly, we find that the
settlement agreement is valid, the Board will enforce the terms of the settlement ,
and the administrative judge properly dismissed the appeal as settled . See Bohan ,
31 M.S.P.R. at 603.
3
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 th e following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule rega rding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for rev iew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wit h the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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.
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 | SMALLWOOD_CALVIN_DC_0752_17_0403_I_1_FINAL_ORDER_2026305.pdf | 2023-04-28 | null | DC-0752 | NP |
3,206 | https://www.mspb.gov/decisions/nonprecedential/DEBERRY_WADE_T_DE_3330_17_0405_I_1_FINAL_ORDER_2026319.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WADE T. DEBERRY,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DE-3330 -17-0405 -I-1
DATE: April 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wade T. DeBerry , Castle Rock, Colorado, pro se.
Yolanda Hernandez , Chantilly, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice C hairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in his Veterans Employment Opportunities Act of 1998
(VEOA) appeal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initi al 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 judg es are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 consis tent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The following facts are undisputed. The appellant is a preference -eligible
veteran with a 30% service -connected disability. Initial Appeal File (IAF), Tab 1
at 1, Tab 5 at 10. During all times relevant to this appeal, he was employed by
the agency’s Defense Contract Management Agency as an NH -III Information
Technology Specialist. IAF, Tab 1 at 1, Tab 5 at 10. On April 26, 2017, the
agency issued a vacancy announcement for one excepted -service GG -13 Project
Manager position in the National Reconnaissance Office, under its 10 U.S.C.
§ 1601 appointing authority. IAF, Tab 10 at 10. The announcement indicated
that it was being issu ed under both Title 10 public and merit promotion
procedures. Id. The appellant applied for the position and was found qualified.
His name appeared on both the Title 10 “non -traditional” and merit promotion
certificates. Id. at 6-9. Although the appel lant was interviewed, he was not
selected. IAF, Tab 1 at 5. Another individual from the non traditional certificate
was selected instead. IAF, Tab 10 at 8.
¶3 After exhausting his administrative remedies with the Department of Labor
(DOL), the appellant fil ed a VEOA appeal with the Board and requested a
3
hearing.2 IAF, Tab 1 at 2 -4, 14 -15. He argued that the agency violated his
veterans’ preference rights by failing to afford him any veterans’ preference at
all. Id. at 5. After issuing a close of the reco rd order, the administrative judge
issued an initial decision denying the appellant’s request for corrective action
without a hearing. IAF, Tab 8, Tab 13 , Initial Decision (ID). She found that the
appellant establish ed jurisdiction over his appeal and th at it was undisputed that
the agency did not afford him veterans’ preference. ID at 2 -3. She further,
found, however, that the agency was not required to do so because appointments
under 5 U.S.C. § 1601 are exempt from Title 5 veterans’ preference requirements,
and the agency’s implementing rules, found in Department of Defense Instruction
(DoDI) 1400.25, Volume 2005, do not require the application of veterans’
preference under these circumstances .3 ID at 3 -5.
¶4 The appellant has filed a petition for review, arguing among other things
that the administrative judge misinterpreted DoDI 1400.25, and that a careful
reading of the rule shows that veterans’ preference should have applied in his
situation. Petition for Review (PFR) File, Tab 1 at 4 -15. He has included with
his petition another copy of the vacancy announcement and some documentation
pertaining to his qualifications, credentials, and veterans’ preference. Id.
at 15-29. The agency has not filed a response.
ANALYSIS
¶5 Although Title 5 veterans’ pr eference requirements apply to F ederal hiring
in general, there are certain appointing authorities, including 10 U.S.C. § 1601 ,
that allow f or appointment without regard to these requirements. Boston v.
2 The appellant expressly stated that he did not wish to raise a claim under the
Uniformed Services Employment and Reemployment Rights Act of 1994 . IAF, Tab 11.
3 The agency filed a copy of DoDI 1400.25, Volume 2005 below. IAF, Tab 5 at 17 -41.
This copy indicates some changes that were made on August 21, 2017 —after the
conclusion of the hiring process at issue. We have analyzed DoDI 1400.25 without
regard to these changes, but in any event, we find that they would not affect the
outcome of this appeal.
4
Department of the Army , 122 M.S.P.R. 577 , ¶ 9 (2015). Tha t section authorizes
the Secretary of Defense to establish excepted -service positions in the Defense
Civilian Intelligence Personnel System (DCIPS) and, “after taking into
consideration the availability of preference eligibles,” appoint individuals to
those positions without regard to the provisions of any other law relating to
appointment. 10 U.S.C. § 1601 . In keeping with the mandate to consider the
availability of preference eligibles, the age ncy has issued rules in DoDI 1400.25,
Volume 2005 to provide certain hiring p references for veterans new to F ederal
service. Boston , 122 M.S.P.R. 577 , ¶ 11. The Board has upheld these rules as a
reasonable and permissible construction of the statute. Id., ¶¶ 7, 11. Under
DoDI 1400.25, Volume 2005, Enclosure 2, ¶ 18.a, veterans’ preference is not
applicable to recruitment from internal candidate sources. However, when
staffing from external sources, preference eligibles will be given preference for
employment in accordance with DoDI 1400.25, Volume 2005, Enclosure 2 § 15.
DoDI 1400.25, Volume 2005, Enclosure 2, ¶ 1.a.
¶6 On petition for review, the appellant argues that he is an external candidate
because he is not an employee of the National Reconnaissance Office and has
never b een employed under DCIPS. PFR File, Tab 1 at 5 -6. However, under the
terms of DoDI 1400.25, “external” candidates are those who are “not currently
serving in permanent or DCIPS positions in the Federal service.” DoDI 1400.25,
Volume 2005, Glossary, Part II. Because the appellant is currently serving in a
permanent position in the Federal service, he does not fit this definition. IAF,
Tab 5 at 10. Furthermore, even if the appellant were an external candidate,
DoDI 1400.25 specifically provides that vet erans’ preference does not apply to
external candidates with prior tenured Federal service who have not been
separated for cause. DoDI 1400.25, Volume 2005, Enclosure 2, ¶ 15.b. The
appellant further argues that he should have been afforded veterans’ pre ference
because he was competing with external candidates. PFR F ile, Tab 1 at 6.
However, we find that the requirement to afford veterans’ preference to a given
5
candidate is based on the status of the individual and not on the status of the other
candida tes on the certificate. DoDI 1400.25, Volume 2005, Enclosure 2 , ¶¶ 1.a,
15.a-b.
¶7 The appellant argues that the agency failed to implement veterans’
preference requirements as required under DoDI 1400.25, Volume 2005, ¶ 15.d,
PFR File, Tab 1 at 4 -6; failed to treat his veterans’ preference as a positive factor
as required by DoDI 1400.25, Volume 2005, ¶ 15.d(2)(a), id. at 6-7; failed to
offer him the position over an equally qualified non -veteran as required by DoDI
1400.25, Volume 2005, ¶ 15.d(2)(b), id. at 7, 5, 12; and failed to fol low the
passover procedures of DoDI 1400.25, Volume 2005, ¶ 15.e, id. at 5-6, 8, 11, 14.
However, as explained above, the veterans’ preference requirements of § 15 apply
only to external candidates without prior Federal servic e.
¶8 The appellant also appears to argue that DoDI 1400.25 is invalid to the
extent that it conflicts with statutes requiring the application of veterans’
preference. He argues that his status as a current Federal employee is no basis to
deny him his statut ory rights as a preference eligible, and that DoDI 1400.25
violates the merit system p rinciples of 5 U.S.C. § 2301 . PFR File, Tab 1 at 8 -10,
12, 14. As an in itial matter, we note that the merit s ystem p rinciples are not
self-executing, and unless a law, rule, or regulation implementing or directly
concerning the principles is violated, the principles themselves may not be made
the basis of a legal action. Pollard v. Office of Personnel Management ,
52 M.S.P.R. 566 , 569 (1992). Nor does VEOA grant the Board the authority to
consider claims for violations of laws other than veterans ’ preference rules.
Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 16 (2007). Furthermore,
although veterans’ preference gene rally is required in Federal hiring, the specific
statutory language of 10 U.S.C. § 1601 , which is aimed at this particular
situation, controls over the general statutory language related to
Gover nment -wide veterans’ preference. See Jacobsen v. Department of Justice ,
101 M.S.P.R. 134 , ¶ 7 (2006). We find no basis to distur b our previous holding
6
in Boston , 122 M.S.P.R. 577 , ¶¶ 7, 11, concerning the validity of DoDI 1400.25 ,
Volume 2005.
¶9 The appellant argues that the vacancy announcement itself provided that
veterans ’ preference would be applied during the selection process. PFR File,
Tab 1 at 7, 13. We have reviewed the vacancy announcement, and we find that it
stated that veterans’ prefere nce would be applied “in accordance with the
procedures provided in DoD Instruction 1200.25, Volume 2005,” which , as
explained above, specifically exclude current Federal employees from receiving
veterans’ preference. IAF, Tab 10 at 10. In fact, the vaca ncy announcement
explicitly stated that “veterans preference will not be applied to applicants with
current federal service, or former federal civilian service . . . .” Id. at 14.
¶10 The appellant also argues that DOL erred in determining that the agency
ultimately made its appointment from the merit promotion certificate. PFR File,
Tab 1 at 10 -11; IAF, Tab 1 at 14. Having reviewed the relevant documents, we
agree with the appellant that DOL’s decision was in error in this regard. The
record shows that the agency made its selection from the non traditional certificate
and not from the merit promotion certificate. IAF, Tab 10 at 6 -9. Nevertheless,
we find that this fact is immaterial. The veterans ’ preference requirements of
DoDI 1400.25 do not distinguish between selections from merit promotion
certificates and other types of certificates of eligibles.
¶11 The appellant makes several arguments pertaining to age discrimination, his
qualifications, and allegedly substandard work by the agency’s human resources
department. PFR File, Tab 1 at 10 -12, 14 -15. We find , however, that these
matters do not pertain to the issue of whether the agency violated his rights under
a statute or regulation related to veterans’ preference, which is the only
cognizable claim in a VEOA appeal. See 5 U.S.C. §§ 3330a , 3330c; Piirainen v.
Department of the Army , 122 M.S.P.R. 194 , ¶ 12 (2015).
¶12 Finally, having reviewed the documentation that the appellant has submitted
with his petition for re view , we find that none of this evidence is either new or
7
material. PFR File, Tab 1 at 15 -29; Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980); 5 C.F.R. § 1201.115 (d). It all appears to predate the close of the
record below, and nothing in it shows that the agency violated the appellant’s
veterans’ preference rights.
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 appro priate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediate ly review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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 revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 C ircuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_ Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DEBERRY_WADE_T_DE_3330_17_0405_I_1_FINAL_ORDER_2026319.pdf | 2023-04-28 | null | DE-3330 | NP |
3,207 | https://www.mspb.gov/decisions/nonprecedential/KACZYNSKI_IVAN_DA_0752_17_0410_I_1_FINAL_ORDER_2026330.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
IVAN KACZYNSKI,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -17-0410 -I-1
DATE: April 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Troy Scott , Baton Rouge, Louisiana, for the appellant.
Bobbi Mihal , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable conduct. On petition f or review, the
appellant argues that the Board should set a new precedent regarding drug and
alcohol abuse to ensure a safe working environment for employees, that the
deciding official’s belief that he lacked any rehabilitation potential was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
prejudicial and unprofessional , and that the agency had a moral obligation to
intervene in his situation sooner, rather than let him use illegal drugs on the job
for over 3 months . Petition fo r Review File, Tabs 1, 4. General ly, 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 applicat ion 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 revi ew 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 thi s final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and caref ully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appe llant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.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 Circ uit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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 representative receives this decision before
you do, then you must file with the district court no later than 30 calendar d ays
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below :
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination clai ms only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D .C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | KACZYNSKI_IVAN_DA_0752_17_0410_I_1_FINAL_ORDER_2026330.pdf | 2023-04-28 | null | DA-0752 | NP |
3,208 | https://www.mspb.gov/decisions/nonprecedential/WALLS_RODNEY_M_DC_0752_21_0100_I_1_FINAL_ORDER_2026353.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RODNEY M. WALLS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -21-0100 -I-1
DATE: April 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert E. Lum , Esquire, Brooklyn, New York, for the appellant.
Keith L. Reid , Esquire, Piscataway , New Jersey , for the appellant.
LaSandy K. Raynor , Esquire, Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his demotion. On petition for review, the appellant argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
administrative judge considered evidence that she should not have considered,
and he generally challenges her credibility determinations. Petition for Review
(PFR) File, Tab 1. He also reasserts his affirmative defenses of reprisal for equal
employment o pportunity (EEO) and whistleblowing activity and his claim of due
process violations. Id. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consisten t with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the re cord closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the appropriate legal framework for analyzing the appellant’s
whistleblower repris al claim , we AFFIRM the initial decision.
¶2 We discern no error in the administrative judge’s findings that the agency
proved the charge of inappropriate behavior by a supervisor by preponderant
evidence and that the penalty of demotion promotes the effi ciency of the service
and was reasonable. Initial Appeal File (IAF), Tab 35, Initial Decision (ID)
at 14-25, 32 -35.3 Regarding the appellant’s affirmative defenses, w e discern no
3 Regarding the penalty of dem otion, we observe th at, in the decision notice, the
deciding official stated that the appellant’s 23 years of service “should have afforded
[him] many opportunities to understand and put into practice the Postal Service’s
commitment to certain standards and expectations, espe cially those concerning conduct
and behavior.” IAF, Tab 4 at 23. To the extent this statement suggests that the
appellant’s length of service was an aggravating factor, such an analysis is in error. See
3
error in the administrative judge’s finding that the appellant failed to pr ove his
claim tha t the agency violated his due process rights.4 ID at 30 -32. We similarly
find no basis to disturb the administrative judge’s finding that the appellant failed
to prove his claim of EEO reprisal .
¶3 Regarding the appellant’s EEO reprisal c laim , however, we note that, in the
initial decision, the administrative judge relied on the standard applied by the
Brown v . Department of the Treasury , 91 M.S.P.R. 60 , ¶ 17 (2002 ) (stating that it is
erroneous to consider an employee’s length of service as an aggravating, rather than
mitigating, factor ); Shelly v. Department of the Treasury , 75 M.S.P.R. 677 , 684 (1997)
(explaining that the Board does not endorse an approach that categorizes an employee’s
lengthy service as aggravating because, under that approach, “the longer someone
works, the more likely it is that a single misstep will be fatal to his or her career”) .
Nonetheless, we independently find the pe nalty of demotion to be reasonable. The
appellant’s misconduct was serious, as it directly relates to his work relationship with
his coworkers. Further, he was in a supervisory role and was, therefore, held to a
higher standard of conduct. See Bowman v. Small Business Administration ,
122 M.S.P.R. 217 , ¶ 12 (2015). Finally, the appellant’s misconduct was repeated.
Thus, we discer n no reason to disturb the administrative judge’s finding that the penalty
of demotion was reasonable. ID at 35; see Arena v. U.S. Postal Service , 121 M.S.P.R.
125, ¶ 6 (2014), aff’d , 617 F. App’x 996 (Fed. Cir. 2015) (Table) (stating that, in
evaluating the penalty, the Board will consider, first and foremost, the nature and
seriousness of the misconduct and its relationship to the employee’s duties, position,
and responsibilities, including whether the offense was intentional or was frequently
repeated); Hanna v. Department of Labor , 80 M.S.P.R. 294 , ¶¶ 15-17 (1998) (finding
that the appellant’s demotion was reasonable, despite 19 years of service, based on a
charge of inappropriate behavior by a supervisor).
4 The appellant also argues on review that the administrative judge violated his due
process rights when she considered evidence related to events that predate the charge at
issue here and complaints from other employees that were not named in the notice of
proposed removal and the decision notice miti gating the penalty. PFR File, Tab 1
at 7-8, 10 -11. This argument is without merit. Although the administrative judge
discussed events prior to those identified in the agency’s charge , she did not rely on
evidence related to those events in her analysis of the charge. Rather, any such
discussion is limited to background information. ID at 2 -25. Regarding his claim that
the administrative judge heard evidence from complainants not na med in the proposal
or decision notice , we observe that both the notice of proposed removal and the
decis ion notice explicitly reference “other employees ” in the appellant’s department as
those having issues with the appellant’s behavior. IAF, Tab 4 at 22 , 30-31. Thus, it
was not inappropriate for the administrative judge to hear evidence of “other
employees.” Accordingly, the appellant has not proven that the administrative judge
violated his due process rights.
4
Board when analyzing an affirmative defense of discrimination or retaliation
under 42 U.S.C. § 2000e -16, which is set forth in Savage v . Department of the
Army , 122 M.S.P.R. 612 , ¶ 51 (2015) , overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25. Under Savage , an appellant
must show that the prohibited consideration was a motivating factor in the
contested personnel action. 122 M.S.P.R. 612 , ¶ 51. The administrative judge
found that the appellant failed to make such a showing. ID at 29 -30.
¶4 Upon close e xamination, t he appellant’s EEO complaint does not appear in
the record, and he has asserted that his EEO complaint was based on threatening,
retaliatory, and harassing behavior from coworkers. IAF, Tab 8 at 4-5, 28 -34.
He does not appear to assert a cla im of discrimination under any of the
EEO -based antidiscrimination statutes. Id. To the extent that the appellant’s
EEO complaint was not rooted in the anti discrimination provisions and thus the
standard governing general reprisal claims set forth in Warren v. Department of
the Army , 804 F.2d. 654 , 656-58 (Fed. Cir. 1986) applies, the result would be the
same . Specifically, the administrative judge observed that the appellant had
explicitly acknowledged that the proposing official had a “standing belief of not
caring if someone files an EEO.” ID at 30; IAF, Tab 17 at 75. Additionally, she
credited the propo sing official and deciding official’s explanation for taking the
action against the appellant. ID at 30. Thus, to the extent the administrative
judge’s application of the Savage standard constitutes error, any such error did
not affect the outcome of thi s 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
prejudic ial to a party’s substantive rights provides no basis to reverse an initial
decision).
¶5 Regarding the appellant’s claim of whistleblower reprisal, a lthough we
ultimately agree with the administrative judge’s conclusion that the appellant
failed to prove tha t his demotion was in reprisal for engaging in whistleblowing
activity , we clarify here the appropriate standard for such a claim brought by an
5
employee of the U.S. Postal Service. Below, t he appellant alleged that he filed a
complaint with the Occupation al Safety and Health Administration (OSHA) and
the Office of Inspector General (OIG) and that such actions constitute protected
activity for whi ch he was later retaliated against. IAF, Tab 1 at 8, Tab 10 at 6. In
considering these claims, the administrat ive judge applied the analytical
framework from the whistleblower protection statutes, which assess es whether the
appellant made a protected disclosure or engaged in a protected activity that was
a contributing factor t o the agency action. ID at 25. In so doing, she found that,
although the appellant established a prima facie case of whistleblower reprisal,
the agency proved by clear and convincing evidence that it would have taken the
same action even in the absence of the whistleblowing activity. ID at 25-29
(citing Carr v. Social Security Administration , 185 F.3d 1318 , 1322 (Fed. Cir.
1999)). On review, the appellant generally challenges the administrative judge’s
findings regarding this affirmative defense, stating that he “established all the
factors in his assertion that he was being retaliated against” for his filing of the
OSHA and OIG complaint s. PFR File, Tab 1 at 13. He has not, how ever,
explained with any specificity this position, nor has he pointed to any evidence in
the record disputing the administrative judge’s findings.
¶6 Nonetheless, we modify the initial decision to apply the appropriate
analytical framework to this affirmat ive defense. Notably, the appellant’s
employer is the U.S. Postal Service, and the whistleblower protection statutes do
not apply to the U.S. Postal Service.5 See Greenlee v. U.S. Postal Service ,
101 M.S.P.R. 323 , ¶ 7 (2006) (stating that the Whistleblower Protection Act does
not apply to the U.S. Postal Service); Mack v. U.S. Postal Service , 48 M.S.P.R.
617, 621 (1991) (reasoning that the U.S. Postal Service is not an “agency” as
5 Although the Board has expressly addr essed this principle as it relates to the
Whistleblower Protection Act, see Greenlee v. U.S. Postal Service , 101 M.S.P.R. 323 ,
¶ 7 (2006), it has not done so with respect to the Whistleblower Protection
Enhancement Act (WPEA). Nonetheless, the underlying rationale in Greenlee is not
changed by the WPEA.
6
defined under 5 U.S.C. § 230 2(a)(2)(C) and its employees are, therefore, not
covered under 5 U.S.C. § 1221 ). Specifically, the Board has found that the lower
“contributing factor” standard of proof set forth in the whistlebl ower protection
statutes does not apply to employees who are not in a covered agency, such as the
U.S. Postal Service. See Mack , 48 M.S.P.R. at 621. Rather, the Board has
explained that the “higher standard of proof applicable to all other claims of
reprisal,” as set forth in Warren , applies to U.S. Postal Service cases to show
reprisal such as that prohibited under 5 U.S.C. § 2302 (b)(8), (9). Id.
Accordingly, to establish this affirmative defense, the appellant must show that
his OSHA and OIG complaint s constituted protected activity, that the proposing
and deciding officials were aware of that protected activity, that the appellant’s
demotion co uld, under the circumstances, have been retaliation, and that there
was a genuine nexus between the retaliation and the demotion. See Warren ,
804 F.2d at 656-58; Mattison v. Department of Veterans Affairs , 123 M.S.P.R.
492, ¶ 8 (2016) .
¶7 In applying the Warren standard, we nonetheless believe that the
administrative judge’s analysis is sound. In the initial decision, she reason ed that
the agency had strong evidence for its demotion action and that the deciding
official’s decision to mitigate the proposed removal to a demotion evidenced
“thoughtful consideration of both the appellant’s serious misconduct and his
ability to perfor m non -supervisory work.” ID at 27; IAF, Tab 4 at 23 -26.
Additionally, she noted that, although the proposing official was the subject of
the OSHA complaint, he was not disciplined or otherwise negatively affected by
it. ID at 27. Further, there is no e vidence that the deciding official or any of the
appellant’s subordinates who complained about his behavior were implicated in
the complaint and, therefore, would have had no motive to retaliate. Based on
these observations and findings, we find that the appellant failed to prove that the
agency action could have been retaliation or that there was a genuine nexus
between the OSHA and OIG complaint s and his demotion. As such, we
7
ultimately agree with the administrative judge that the appellant failed to
establish this affirmative defense.
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Pro tection Board does not
provide legal advice on which option is most appropriate for your situation and
the 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
shoul d contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 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
If you submit a petition for review to the U.S. Court of Appeals for the
Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 w ith the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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
7 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
Board neither endorses the services provided by any attorney nor warrants that
any attorne y 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 | WALLS_RODNEY_M_DC_0752_21_0100_I_1_FINAL_ORDER_2026353.pdf | 2023-04-28 | null | DC-0752 | NP |
3,209 | https://www.mspb.gov/decisions/nonprecedential/DABNER_CINDY_CH_4324_17_0458_I_1_FINAL_ORDER_2026438.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CINDY DABNER,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER S
CH-4324 -17-0458 -I-1
CH-0752 -17-0398 -I-1
DATE: April 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. 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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained an agency action suspending her for 30 days and found that she failed to
prove her affirmative defenses. Generally, we grant petitions such as this one
only in th e following circumstances: the initial decision contains erroneous
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 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
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 admin istrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 expre ssly
MODIFIED to correct errors in the administrative judge’s analysis of the
appellant’s claims of retaliation for prior equal employment opportunity (EEO)
activity and her claims of reprisal for whistleblowing and to VACATE the
administrative judge’s fin ding that the agency would have taken the same
personnel action absent the appellant’s protected disclosures , we AFFIRM the
initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The agency suspended the appellant from her GS -13 Physical Scientist
positio n for 3 0 days based on three charges: (1) failure to follow instructions
(four specifications); (2) conduct unbecoming (two specifications); and (3) failure
to comply with leave procedures (nine specifications). MSPB Docket
No. CH-0752 -17-0398 -I-1, Initi al Appeal File, Tab 4 at 24-29. The appellant
appealed the agency action to the Board and challenged the agency’s charges and
the reasonableness of the penalty and , among other things, raised the affirmative
defenses of discrimination based on race, ances try, age, and sex, and asserted
retaliation based on prior EEO activity, a prior Board appeal, and whistleblowing .
The appellant also claimed that the agency action violated her rights under the
3
Uniformed Services Employment and Reemployment Rights Act (USERRA) and
the administrative judge docketed that claim as a separate appeal . MSPB Docket
No. CH -4324 -17-0458 -I-1, Initial Appeal File (4324 IAF), Tab 3.
¶3 The administrative judge held a lengthy hearing and issued a thorough and
well-reasoned initial decision addressing both appeals . 4324 IAF, Tab 92, Initial
Decision (ID). The administrative judge found that the agency proved all of the
charges and specif ications and that the penalty of a 30 -day suspension was
reasonable. ID at 13 -28, 46 -48. The administrative judge also found that the
appellant failed to prove her affirmative defenses.2 ID at 28-46.
¶4 The appellant has filed a petition for review in wh ich she challenges
virtually all of the administrative judge’s findings regarding the charges , the
reasonableness of the penalty, and her affirmative defenses. Petition for Review
(PFR) File, Tab 1. The appellant also claims that the administrative judge abused
her discretion and demonstrated bias during the hearing. Id.
¶5 After a thorough review of the record evidence, the initial decision, and the
appellant’s claims on review, we discern no reason to disturb the initial decision
except as discussed bel ow. Yang v. U.S. Postal Service , 115 M.S.P.R. 112 , ¶ 12
(2010) ( stating that arguments that constitute mere disagreement with the initial
decision do not provide a basis to grant a petition for review ); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (finding
no reason to disturb the administrative judge’s conclusions when the initial
decision reflects that the administrative judge considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions). Regardin g the
appellant’s arguments that the administrative judge failed to mention all of the
record evidence, the fact that the administrative judge did not mention a
2 Although she docketed it as a separate appeal, the administrative judge correctly
considered the appellant’s claims that the agency violated her rights under USERRA as
an affirmative defense in the appeal of the suspension. Brown v. U.S. Postal Service ,
106 M.S.P.R. 12 , ¶ 19 (2007) (stating that in a removal appeal, the Board can consider a
USERRA claim as an affirmative defense).
4
particular piece of evidence does not mean that she did not consider it.3 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) (finding th at 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).
¶6 Regarding the appellant’s affirmative defenses of status -based
discrimination and retaliation for prior EEO activity , the administrative judge
explained that the Board finds unlawful discrimination when an appellant shows
that discrimination or retaliation was a motivating factor in the contested
personnel action, even if it was not the only reason for the actio n, but that the
appellant here failed to prove by preponderant evidence that the agency’s
decision to suspend her was the result of disparate treatment discrimination. ID
at 29 -32; see Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 ,
¶¶ 28-30 (2016) , clarified by Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶¶ 23-24. Like the merits of the agency’s charges, except as
explained below, the appellant has not shown a basis to disturb the administrative
judge’s well -reasoned decision in this regard.4 Yang , 115 M.S.P.R. 112 , ¶ 12 ;
Broughton , 33 M.S.P.R. at 359.
3 To the extent the appellant disagrees with the administrative judge’s credibility
determinations based on the administrative judge’s observation of the demeanor of the
witnesses, regarding the appellant’s claim of harmful procedural error for example, PFR
File, Tab 1 at 7 -9, it is well established that the Board must defer to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly, on the
administrative judge’s observation of the demeanor of witnesses testifying a t a hearing ,
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The Board may
overturn such determinations only when it has “sufficiently sound” reasons for doing
so. Id. The appellant has not presented such reasons.
4 Because we affirm the administrative judge’s finding that the appellant failed to show
that discrimination or retaliation 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 decision. See Pridgen , 2022 MSPB
31, ¶¶ 20-22, 29 -33.
5
¶7 As to the appellant’s claim of retaliation for prior EEO activity, the
administrative judge failed to note that both the proposing and deciding officials
were named in the appellant’s EEO filings. PFR File, Tab 1 at 20 -21; ID at 32.
This was error and we modify the initial decision to consider that fact .
Nevert heless, we still agree with the administrative judge that the appellant failed
to prove her claim. ID at 32 -35. Among other things, we note that the
administrative judge found that the deciding official credibly testified that the
appellant’s prior EEO a ctivity did not play a part in her decision and also found
that in her own testimony the appellant did not specifically refer to a retaliatory
animus on the part of anyone and produced no evidence that the suspension at
issue was motivated by retaliation . ID at 34. The administrative judge also
observed that in her closing argument , the appellant’s assertions regarding
retaliation for prior EEO activity consisted solely of a list of her prior activity ,
but did not point to anything supporting a finding of retaliation. ID at 34;
4324 IAF, Tab 90. In sum, the initial decision, as modified to acknowledge that
the proposing and deciding official s were named in the appellant’s prior EEO
activity, correctly found that the appellant failed to establish that retaliation for
prior EEO activity was a motivating factor in the personnel actions taken against
her.
¶8 The appellant next argues on review that the administrative judge erred in
finding that she did not establish her claim of whistleblow er retaliation regardi ng
eight protected disclosures allegedly made between November 2014 , and
June 2016. PFR File, Tab 1 at 9 -12. As to six of the disclosures (disclosures 1,
2, 3, 5, 6, and 8), the administrative judge found that they were not only
extremely vague but that the appellant was merely expressing her disagreement
with her supervisor’s opinions regarding matters that were within her supervisor’s
appropriate exercise of her authority , and that , therefore , the appellant did not
nonfrivolously allege any of the kind of wrongdoing listed in 5 U.S.C.
§ 2302 (b)(8) . ID at 38 -39. Because this is an appeal of an adverse action,
6
however, and not an individual right of action (IRA) appeal, the whistleblower
retaliation claim should be treated as an affirmative defense. Ayers v.
Department of the Army , 123 M.S.P.R. 11 , ¶ 1 2 (2015). The appellant is required
to prove by preponderant evidence that she made disclosures protected under
5 U.S.C. § 2302 (b)(8), and that a disclosure was a contributing factor in an
agency personnel action . Campbell v. Department of the Army , 123 M.S.P.R.
674, ¶ 11 (2016). Whether a claim is nonfrivolous does not come into play
because jurisdiction is not at issue. Therefore, to the extent the administrative
judge found that the appellant’s six disclosures were insufficient to qualify as
nonfrivolous allegations to establish IRA jurisdiction, she erred. ID at 38 -39.
However, any such error did not prejudice the appellant’s substantive rights
because establishing a protected disclosure requires proof by preponderant
evidence, a higher burden of proof distinct from the lower burden of proof
necessary to make a non frivolous allegation. 5 C.F.R. § 1201.4 (s) (a
nonfrivolous allegation is a claim under oath or penalty of perjury or supported
by evidence relevant to the matter at issue that, if proven, could establish the
matters it asserts); Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984) (finding that an adjudicatory error that is not prejudicial to a party ’s
substantive rights provides no basis for reversal of an initial decision). In any
event, we agree with the administrative judge that the appellant’s disclosures are
not protected under the whis tleblower protection statutes. Lachance v. White ,
174 F.3d 1378 , 1382 (Fed. Cir. 1999) ( stating that the statutory protection for
whistleblowers “is not a weapon in arguments over policy or a shield for
insubordinate conduct. Policymakers and administrators have every right to
expect lo yal professional service from subordinates”); Salerno v. Department of
the Interior , 123 M.S.P.R. 230, ¶ 6 (2016) (stating that to be protected,
disclosures must be specific and detailed, not vague allegations of wrongdoing).
¶9 As to the remaining two disclosures (disclosures 4 and 7), a purported
violation of the statute regarding the privacy of individual health care information
7
and a requirement regarding the safeguarding of business information, the
administrative judge found that the appellant failed to allege how and under what
circumstances these alleged violations occurred and , because they were so vague,
the appellant did not e stablish that they were protected disclosures. ID at 39.
The appellant has not shown how the administrative judge erred in this regard.
Salerno , 123 M.S.P.R. 230, ¶ 6.
¶10 Even though he found that the appellant’s purported disclosures were not
protected under the whistleblower protection statutes, the administrative judge
went on to consider whether the appellant establish ed the contributing factor
criterion . ID at 39. One way to establish this criterio n is the knowledge/timing
test by showing that the official who took the pe rsonnel 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. Bradley v. Department of Homeland Secu rity,
123 M.S.P.R. 547, ¶ 13 (2016). The Board has held that disclosures that occurred
up to two years prior to the personnel ac tion meet the timing prong of the test.
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015). Here, the
administrative judge found that , with respect to the disclosures that met the
timing prong, the appellant failed to meet the knowledge prong of the analysis;
the administrative judge noted that the appellant did not testify that either the
proposing or dec iding officials knew of the protected activity and there is not any
evidence linking the protected activity and the 30 -day suspension.5 ID at 39.
5 The knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor criterion. Stiles v. Department of Homeland Security , 116 M.S.P.R.
263, ¶ 24 (2011). Even if the appellant fails to satisfy th e knowledge/timing test , other
evidence, such as that pertaining to the strength or weakness of the agency ’s reasons for
taking the personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether those individuals had a desire or motive to
retaliate against the appellant should be considered. Id. Here , even if the appellant
made protected disclosures, which we find that she did not, considering the factors for
determining contributing factor independent of the knowledge/timing test, we find th at
8
¶11 After addressing the appellant’s failure to prove that she made protected
disclosures that were a contributin g factor in the personnel action, the
administrative judge went on to find that the agency proved by clear and
convincing evidence that it would have taken the same personnel action absent
the appellant’s purported disclosures. ID at 40. However, the Boa rd has held that
it may not proceed to the clear and convincing evidence test unless it has first
made a finding that the appellant has shown by preponderant evidence that a
protected disclosure was a contributing factor in a personnel action. Clarke v.
Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014) ,6 aff’d ,
623 F. App’x 1016 (Fed. Cir. 2015 ); Belyakov v. Department of Health and
Human Services , 120 M.S.P.R. 326, ¶ 7 n.3 (2013). Thus, the administrative
judge erred in this regard and we vacate her finding that the agency met its clear
and convincing burden.
¶12 The appellant argues on review that the administrative judge failed to
consider her claim that she made additional protected disclosures for which she
was suspended, principally, signing documents “under protest” and “under
duress,” actions which formed the basis of the conduct unbecoming charge. PFR
File, Tab 1 at 9 -10. Because the administrative judge did not consider this claim
and the record is complete, we do so now and modify the i nitial decision
accordingly.
¶13 The administrative judge found that the appellant’s signing internal
documents and communications with state partners as she did, after being told not
to do so, constitute d conduct unbecoming. ID at 23 -27. There is no requi rement
under 5 U.S.C. § 1221 (e)(2) that the adverse personnel action be based on facts
the appellant failed to establish contributing factor. We modify the initial decision to
include this analysis.
6 We acknowledge that, in Delgado v. Merit Systems Protection Board , 880 F.3d 913 ,
923 (7 th Cir. 2018), the U.S. Court of Appeals for the 7th Circuit called into question
some of the reasoning in Clarke . The court did not, however, question this principle.
9
completely separate and distinct from protected whistleblowing disclosures.
Watson v. Department of Justice , 64 F.3d 1524 , 1528 (Fed. Cir. 1995). Wrongful
or disruptive conduct is not shielded by the presence of a protected disclosure,
and the character and nature of a disclosure can still be a legitimate basis for
discipline. Greenspan v. Department of Veterans Affairs , 464 F.3d 1297 , 1305
(Fed Cir. 2006); Hamilton v. Department of Veterans Affairs , 115 M.S.P.R. 673 , ¶
12 (2011). The Whistleblower Protection Act was n ot meant to shield employees
from their own misconduct. Carr v. Social Security Administration , 185 F.3d
1318 , 1326 (Fed. Cir. 1999). Therefor e, even if the appellant’s signing
documents as she did could be considered a disclosure of information and
therefore protected under 5 U.S.C. § 2302 (b)(8), her inappropriate conduct
surrounding an y such disclosures does not preclude discipline. Furthermore , the
appellant notations with her signature do not explain how she was disclosing one
of the types of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8). See Salerno ,
123 M.S.P.R. 230 , ¶ 6 (stating that to be protected, disclosures must be specific
and detailed, not vag ue allegations of wrongdoing, and must evidence one of the
types of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8) ).
¶14 Lastly, the appellant argues on review that the administrative judge abused
her d iscretion and exhibited a lack of judicial temperament during the third day of
the hearing when the administrative judge directly questioned the agency
representative as to the location of certain documents in the record, and when the
appellant’s represent ative objected, “went into a tirade,” and “in an angry
outburst and in extremely loud yelling,” warned him that, if he said another word,
he would be expelled from the hearing and be held in contempt. PFR File, Tab 1
at 6-7. The appellant argues that she was thereby denied the opportunity to
cross -examine the agency representative, that the administrative judge was
10
attempting to intimidate h er representative , and that the representative felt
verbally attacked.7
¶15 The next day, the appellant filed a motion to strike the entire exchange from
the record, arguing that she was denied the opportunity to state the basis for her
objection to the administrative judge’s questioning of the agency representative.
4324 IAF, Tab 85. The administrative judge denied the motion, explaining that
the agency representative was not a witness and was not offering testimonial
evidence, and that she (the administrative judge) could not and would not
consider anything the agency representative said as evidence. Id., Tab 86. She
acknowledged, however, that, to the extent the appellant was unable to make a
full record of h er argument on the matter, she had erred, and that if the appellant
felt that, through the motion , she had made her position clear, the matter would be
closed, but that if she was not satisfied, she could submit further argument within
a week. Id. The appellant did not submit anything further.
¶16 We first find that the appellant has not shown that the administrative judge
abused her discretion in questioning the ag ency representative regarding the
location of documents in the record. The administrative judge was not, as she
explained, eliciting testimony from the agency representative, and there is no
indication in the initial decision that she considered what the representative said
as testimony. Rather, the administrative judge was attempting to assure that she
understood the agency’s position on a particular issue, which is part of her
obligation as an adjudicator. Moreover, an administrative judge has broad
discretion to control the proceedings. Grubb v. Department of the Interior ,
96 M.S.P.R. 361 , ¶ 27 ( 2004). Further, t he administrative judge acknowledged
that she may have erred in not allowing the appellant to explain h er position
7 The appellant argues, without citation to the record, that this was the third or fourth
time during the hearing that the administrative judge had angrily cut off her
representative and denied her the opportunity to place into the record objections to
rulings. PFR File, Tab at 6.
11
regarding the questioning, but the error was cured when she afforded the
appellant an opportunity to further explain and she failed to do so.
¶17 Next, we consider the appellant’s claim that the administrative judge
demonstrated a lack of judicial temperament and, based on a careful review of the
exchange, find there was no “tirade” by the administrative judge, as the appellant
alleges, and the administrative judge did not engage in any “extremely loud
yelling.” In fact, she did not yell at all.8 Rather, she spoke with authority and
exhibited appropriate control.
¶18 Construing the appellant’s assertion as one of bias, she has not proven her
claim.9 An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’ s
comments or actions evidence “ a deep -seated favoritism or antagonism that would
make fair judgment impossible. ” Bieber v. Department of the Army , 287 F.3d
1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)). Although the administrative judge ’s tone was sharp in the exchange
at issue, we do not believe that her statements or the record as a whole in any way
reflect bias on her part in favor of the agency. Deleon v. U.S. Postal Service ,
7 M.S.P.R. 640 , 643 (1981). Nor has the appellant, b y her claim, overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386
(1980).
8 We have reviewed both the written hearing transcript and the audio recording of the
hearing.
9 The appellant notes that the administrative judge denied many of her representative ’s
objections during the hearing, but she has not shown with regard to a ny particular
ruling how the administrative judge erred or how her substantive rights were
prejudiced .
12
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.11 3. You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the 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 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 possi ble choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review i n general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affe cted by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civ il action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
14
discrimination based on race, color, religion, sex, national origin, or a disabling
condi tion, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC 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
15
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a 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.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of 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.
16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_ Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DABNER_CINDY_CH_4324_17_0458_I_1_FINAL_ORDER_2026438.pdf | 2023-04-28 | null | S | NP |
3,210 | https://www.mspb.gov/decisions/nonprecedential/ALI_JOHN_A_AT_0752_17_0129_I_1_FINAL_ORDER_2025825.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN A. ALI,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0752 -17-0129 -I-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James E. Tramel, III , Lilburn, Georgia, for the appellant.
Andrew M. Greene , Esquire, and John F. Dymond , Esquire, Atlanta,
Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available wh en the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petit ioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
address the administrative judge’s exclusion of video evidence, we AFFIRM the
initial decision.
¶2 The appellant’s removal was based primarily on an altercation he allegedly
caused at his place of work with a security guard . Initial Appeal File (IAF) ,
Tab 4 at 16-19. The appellant alleges that the altercation began after he asked to
speak with the security guard about the guard’s purported ly pushing the
appellant’s fiancé e a week earlier. Petition for Review (PFR) File, Tab 1 at 3 .
According to the administrative judge, the security guard testified at the hearing
that he merely had ta pped the appellant’s fiancé e on the shoulder. IAF, Tab 26,
Initial Decision (ID) at 7 n.4.
¶3 On review, the appellant argues that the administrative judge erred by
excluding from the record a video purportedly showing the security guard pushing
the appellan t’s fiancé e. PFR File, Tab 1 at 5. The administrative judge excluded
the video as irrelevant. ID at 8 n.6. However, we find that the video was relevant
because, if the appellant’s assertion is true, it would call the security guard’s
credibility into q uestion and because it would be worth some mitigating weight in
determining the reasonableness of the penalty .
¶4 Nevertheless, the Board will only reverse an initial decision on the ground
that the administrative judge improperly excluded evidence if the appellant
3
demonstrates that the error affected the outcome of the case. See Nichols v. U.S.
Postal Service , 80 M.S.P.R. 229 , ¶ 7 (1998); 5 C.F.R. § 1201.115 (c). Here, t he
appellant has f ailed to show how the error affected the outcome of the case, and
we find that it did not. First, even if the security guard’s credibility was lacking,
the administrative judge relied on the testimony of two additional witnesses , who
observed the altercat ion and lacked bias, to find that the appellant committed the
charged misconduct . ID at 6. Second, although the evidence could be worth
some mitigating weight in determining the reasonableness of the penalty, we
agree with the administrative judge that the fact that the appellant may have been
provoked by the security guard’s previous behavior would not, even combined
with other mitigating factors, outweigh the seriousness of the charges and other
aggravating factors such that the appellant’s removal could be deemed
unreasonable . ID at 10 -13. Accordingly, we decline to reverse the initial
decision on this basis ; however, we modify the initial decision to the extent the
administrative judge found the video irrelevant .
¶5 The appellant also argues on revie w that the agency failed to prove its
charges, that he was denied the opportunity to respond to the proposal notice, and
that the deci ding official failed to sufficiently consider the appropriateness of the
penalty before making his decision. PFR File, Ta b 1 at 1‑7. We have considered
his arguments and find that he has not provided a sufficient basis to disturb the
explained findings on these issues set forth in the initial decision.2 Accordingly,
we affirm the initial decision , as modified, and uphold t he appellant’s removal.
2 The administrative judge found that the appellant did not submit any evidence
showing that his removal was discriminatory and thus did not establish a n affirmative
defense of disparate treatment di sability discrimination. ID at 18. Other than to allege
that the agency’s denial of his request to reschedule his oral reply was “discriminatory
based on his medical incapacity,” the appellant does not challenge the administrative
judge’s findings that h e failed to prove this affirmative defense. PFR File, Tab 1 at 2.
However, we will briefly address such claim in light of recent case law . A claim of
discrimination based on an individual’s status as disabled requires that the individual be
a qualified individual with a disability. Haas v. Department of Homeland Security ,
4
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should imm ediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of t he three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2022 MSPB 36 , ¶ 28. Further, to establish a claim of disparate treatment disability
discrimination, the appellant has the burden of proving that his disabi lity was at least a
motivating factor in his removal . See Pridgen v. Off ice of Management and Budget ,
2022 MSPB 31 , ¶¶ 31 -34. Because we agree that the appellant did not prove this claim ,
even when considering the appellant’s allegations under the correct standard, we do no t
reach the question of whether the appellant was “qualified,” see Haas , 2022 MSPB 36 ,
¶ 29, or whether his disability was a “ but-for” cause of the removal action, see Pridgen ,
2022 MSP B 31 , ¶¶ 20 -22, 29 -33.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at 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. ____ , 137 S. Ct. 1975 (2017). If you have a
6
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel 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).
If you submit a petition for judicial review to the U.S. Court of Appeals f or
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ALI_JOHN_A_AT_0752_17_0129_I_1_FINAL_ORDER_2025825.pdf | 2023-04-27 | null | AT-0752 | NP |
3,211 | https://www.mspb.gov/decisions/nonprecedential/CHIQUIAR_RABINOVICH_SALOMON_PH_844E_20_0327_I_2_FINAL_ORDER_2025864.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SALOMON CHIQUIAR -
RABINOVICH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-844E -20-0327 -I-2
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert R. McGill , Esquire, Walkersville, Maryland, for the appellant.
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
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 has filed a petition for review of the initial decision, which
reversed the agency’s decision denying the appellant ’s application for disability
retirement benefits . On petition for review, the agency argues that the
administrative judge erred in finding that the appellant m eets the criteria for
entitlement to disability retirement . 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 th e initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due dil igence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal , we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 We ORDER the Office of Personnel Management (OPM) to award the
appellant disability retirement. OPM must complete this action no later than
20 days after the date of this decision.
¶3 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶4 No later than 30 days after OPM tell s the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
3
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 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.
NOTIC E 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 appropriat e forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which optio n is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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
immediately re view the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three ma in possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the da te of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourt s.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endor ses 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 fili ng a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 disabli ng
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security . See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for 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.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
Contact information for the courts of appeals can be 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 | CHIQUIAR_RABINOVICH_SALOMON_PH_844E_20_0327_I_2_FINAL_ORDER_2025864.pdf | 2023-04-27 | null | PH-844E | NP |
3,212 | https://www.mspb.gov/decisions/nonprecedential/PORTER_DELORES_CH_3330_17_0169_I_1_REMAND_ORDER_2025873.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DELORES PORTER,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
CH-3330 -17-0169 -I-1
DATE: April 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Delores Porter , Mount Prospect, Illinois, pro se.
Travis W. Gosselin , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action under the Veterans Employment Opportunities Act of
1998 (VEOA). For the reasons discussed below, we GRANT the appellant’s
petition for review , VACATE the initial decision , and REMAND the case to the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
regional office for further adj udication of that claim in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant, who is entitled to veterans’ preference, applied for a GS -09
Employee Benefits Examiner position under vaca ncy announcement No. PW-17-
CHI-EBSA -0032 . Initial Appeal File (IAF), Tab 7 at 4, Tab 16 at 5. The agency
did not select her for the position and s he subsequently filed a complaint with the
Department of Labor (DOL) , Veterans’ Employment and Training Service
(VETS) , which investigated and found no violation of her veterans’ preference
rights. IAF, Tab 15 at 5, Tab 16 at 5 -6. The appellant filed this VEOA appeal
5 days later, alleging that the agency denied her the right to compete for a vacant
position for which the agency accepted application s from individuals outside its
own workforce , in violation of 5 U.S.C. § 3304 (f)(1) . IAF, Tabs 1, 8 .
¶3 The appellant subsequently applied for vacancy announcements
Nos. PW-17-CHI-EBSA -0030 and PW-16-CHI-OASAM -0171 , and she alleged
that the agency violated her veterans’ preference rights when it cancelled those
vacancy announcements. IAF, Tab 16 at 4 , Tab 13 . The administrati ve judge
added those claims to this VEOA appeal and gave the appellan t notice of the
requirement that she exhaust her remedies with DOL , as well as the pertinent
deadline for filing such a claim and the standards for the equitable tolling of that
deadline . IAF, Tab 16 at 4 -5. Without holding the requested hearing, the
administrative judge denied the appellant’s VEOA appe al, finding that the Board
lacks jurisdiction over two of her VEOA claims and that the third must be
dismissed as a matter of law . IAF, Tab 18, Initial Decision (ID).
¶4 Concerning vacancy announcement No. PW-17-CHI-EBSA -0030 , the
administrative judge found that the appellant failed to allege that she exhausted
her claim with DOL. ID at 3. As to vacancy announcement No. PW-16-CHI-
OASAM -0171, the administrative judge found that the appellant failed to timel y
3
file her claim and did not identify any basis for the equitable tolling of the
deadline . ID at 4 -5. Therefore, she determined that the Board lacks jurisdiction
over these two nonselections. ID at 3 -5.
¶5 Regarding vacancy announcement No. PW-17-CHI-EBSA -0032, the
administrative judge found that the appellant established jurisdiction over her
VEOA claim. ID at 5-6. Nevertheless, she concluded that corrective action must
be denied as a matter of law . She reasoned that obtaining the educat ional degree
was a requirement of participation in the Recent Graduates Program. ID at 7.
Because the appellant had applied for the position under this program before she
obtained her master’s degree and she did not show that she had notified the
agency when she submitted her application that she had completed the degree
requirements , she was not qualified for the position . ID at 6-8.
¶6 In her petition for review, the appellant only addresses her claim concerning
vacancy announcement No. PW-17-CHI-EBSA -0032, arguing that her résumé and
application both indicated that she obtained he r master’s degree prior to applying
for the position.2 Petition for Review (PFR) File, Tab 1 at 4. She asserts that
VETS failed to forward her supporting documentation as promised, and that that
documentation would have established her claim. Id. at 4-5. She also argues that
the transcript she submitted with her application fulfills the requirements of the
Recent Graduate s Program. Id. at 6-10; PFR File, Tab 4. The agency has filed a
response in opposition to the appellant’s petition for review, and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 To establish Board jurisdiction over a VEOA right -to-compete claim, the
appellant must show that she exhausted her remedy with D OL and make
nonfrivolous allegations that she is a veteran as described in 5 U.S.C.
2 The appellant does not challenge the administrative judge’s findings as to her other
two nonselections, and we discern no basis to disturb them.
4
§ 3304 (f)(1), the agency denied her the right to compete under merit promotion
procedures for a vacant position for which the agency accepted applications from
outside its own workforce, and the denia l occurred on or after December 10,
2004. Wheeler v. Department of Defense , 113 M.S.P.R. 376, ¶ 7 (2010) .
Concerning vacancy announcement No. PW-17-CHI-EBSA -0032, the
administrative judge correctly found that the Board has jurisdiction over the
appellant’s claim because the record reflects that she exhausted her remedy
before DOL, she is preference eligible, and she made a nonfrivolous allegati on
that the agency denied her the right to compete for the position in
December 2016 . Id.; ID at 5 -6. To prev ail on the merits in a right -to-compete
claim under 5 U.S.C. § 3330a (a)(1)(B), the ap pellant must prove the jurisdictional
elements by preponderant evidence. Graves v. Department of Veterans Affairs ,
114 M.S.P.R. 2 09, ¶ 19 (2010). The Board has found that an agency ’s failure to
properly evaluate an applicant’s qualification may constitute a denial of the right
to compete . See Phillips v. Department of the Navy , 110 M.S.P.R. 184 , ¶¶ 8, 12,
14 (2008 ), overruled on other grounds by Oram v. Department of the Navy ,
2022 MSPB 30 , ¶ 18 (finding that, contrary to the implicit holding in Phillips ,
current Federal employees are not entitled to corrective action under VE OA if
they are denied the opportunity to compete under 5 U.S.C. § 3304 (f)).
¶8 The administrative judge denied corrective action as to the appellant’s
nonselection for vacancy announcement No. PW-17-CHI-EBSA -0032, finding
that the appellant applied for the position before she obtained her degree and did
not show that she notified the agency when she applied that she had completed
the degree requirements . ID at 6 -8. The appellant argues that both her résumé
and application indicated that her graduation date was August 17, 2016, before
the November 18, 2016 opening date on the job announcement . PFR File, Tab 1
at 4; IAF, Tab 1 at 5 . She further argues that the transcript she submitted with
her applica tion shows that she completed 36 credit hours , which is equivalent to
2 years of graduate -level education and a master’s degree . PFR File, Tab 1 at 9;
5
IAF, Tab 1 at 5. However, the transcript was issued before she obtained her
degree, and therefore did n ot reflect that she had obtained it. Id.; IAF , Tab 7
at 6-8. The appellant asserts that the regulations for the Recent Graduates
Program do not include the requirement that the agency applied in this matter,
evidence of the award of a degree , for an individual to be considered for the
position. PFR File, Tab 4 at 5; IAF, Tab 1 at 5. We agree.
¶9 To participate in the Recent Graduates Program , an individual must have a
received a degree within 2 years. Dean v. Department of Labor , 808 F.3d 497 ,
508 (Fed. Cir. 2015); 5 C.F.R. § 362.302 (a). However, to apply for a posit ion in
the program , an individual is required only to have “completed all requirements
of an academic course of study leading to a qualif ying . . . degree.” 5 C.F.R.
§ 362.302 (b)(1). The Office of Personnel Management ( OPM ) considered, but
declined to adopt, a requirement that candidates for positions under the program
must be in receipt of a diploma, observing that there may be a delay between
completing academic requirements and receiv ing the degree . Excepted Service,
Career and Career -Conditional Employment; and Pathways Programs , 77 Fed.
Reg. 28,194, 28,210 (May 11, 2012) (codified in pertinent part at
5 C.F.R. § 362.302 ). Instead, the qualifications standards that apply to positions
in the Recent Graduates Program are OPM’s Qualification Standards. Dean ,
808 F.3d at 508; 5 C.F.R. § 362.303 (d). As it concerns series 1801 positions,
such as the Employee Benefits Investigator position at issue here, OPM has
not adopted specific qualification standards. IAF, Tab 13 at 4; OPM,
Classification & Qualifications, General Schedule Qualification Standard s,
General Inspection, Investigations, Enforcement, and Compliance Series, 1801,
https://www.opm.gov/policy -data-oversight/classification -qualifications/general -
schedule -qualification -standards/1800/general -inspection -investigation -
enforcement -and-compliance -series -1801/ (last visited Apr. 26 , 2023 ). In stead,
it refers to its general qualification standards for administrative and
management positions. Id. Those standards provide that, as relevant to a
6
GS-09 position, the education qualification standard may be fulfilled either by a
“master’s or equivalent degree,” or “2 full years of progressively higher level
graduate education leading to such a degree.” OPM, General Schedule
Qualification Standards, Group Coverage Qualification Standards,
https://www.opm.gov/policy -data-oversight/classification -qualificat ions/general -
schedule -qualification -standards/#url=Group -Standards (last visited Apr. 26,
2023 ).
¶10 Consequently, a question exists regarding whether the agency vi olated the
appellant’s veterans’ preference rights under 5 U.S.C. § 3304 (f)(1) in denying her
the right to compete by requiring that she prove that she received her degree at
the time she applied . PFR File, Tab 1 at 6 -10. However, the record is not
sufficiently developed to allow us to ma ke this determination on review. Thus,
we must remand the appeal to the regional office to develop the record and
adjudicate this issue , including providing the appellant’s requested hearing , if
necessary . See Montgomery v. Department of Health and Human Services ,
123 M.S.P.R. 216, ¶ 13 (2016) (observing that the Board may decide the merits of
a VEOA appeal without holding a he aring only when there is no genuine dispute
of material fact and one party must prevail as a matter of law) ; IAF, Tab 1 at 2 .
¶11 In finding that there was no dispute of material fact, the administrative
judge observed that the appellant did not provide a copy of the vacancy
announcement. ID at 6 -7. The appellant also did not provide a copy of her
application. On review, she expresses confusion regarding the processing of her
appeal, and seems to believe that VETS was responsible for providing its
investigat ive file to the Board. PFR File, Tab 1 at 5. Although the appellant
bears the burden of proof regarding her VEOA claim, the agency had the
obligation to come forward with relevant evidence pursuant to the
acknowledgment order and the Board’s regulations within 20 days of the
docketing of the appeal . Elder v. Department of the Air Force , 124 M.S.P.R. 12 ,
¶ 23 (2016); 5 C.F.R. §§ 1201.22 (b)(1), 1201. 25(c); IAF, Tab 2 at 6, 9 -10. In
7
particular, in a case involving a nonselection , the evidence regarding the selection
process often is exclusively within the agency’s possession. See Bradley v.
Department of Homeland Security , 123 M.S.P.R. 547 , ¶ 16 (2016) (observing in
an individual right of action appeal that when the personnel action at issue is a
nonselection, the evidence concerning who was involved in the selection process,
what they knew about the appe llant’ s protected disclosures, and who may have
influenced their decision is exclusively within the agency’s possession) .
Therefore, on remand, the administrative judge should order the agency to comply
with the instruction to provide an agency file, and to include documents relevant
to its selection for the position in question, such as the vacancy announcement,
the appellant’s application, and documents related to her nonselection.
ORDER
¶12 For the reasons discussed above, we remand this case to the regiona l office
for further adjudication in accordance with this Remand Order. In the remand
initial decision, the administrative judge may restate the previous jurisdictional
findings as to vacancy announcement Nos. PW-16-CHI-OASAM -0171 and
PW-17-CHI-EBSA -0030.3
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
3 The remand initial decision will incorporate the find ings from this Order and include a
notice of appeal rights for all claims raised by the appellant. | PORTER_DELORES_CH_3330_17_0169_I_1_REMAND_ORDER_2025873.pdf | 2023-04-27 | null | CH-3330 | NP |
3,213 | https://www.mspb.gov/decisions/nonprecedential/BARRETT_KEVIN_J_SF_1221_16_0632_W_1_FINAL_ORDER_2025883.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN J. BARRETT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -16-0632 -W-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy A. Bridge , Esquire, St. Charles, Illinois, for the appellant.
Glen E. Woodworth , Esquire, Anchorage, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his request for corrective action in an individual
right of action (IRA) appeal. Generally, we grant petitions such as this one only
in the followi ng circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201 .115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant has served as a Nurse Practitioner at the agency’s Alaska
Healthcare System since September 2014. Initial Appeal File (IAF), Tab 6
at 304-05. On December 30, 2015, the appellant filed a complaint with the Office
of Special Counsel (OSC) in which he alleged that the agency had retaliated
against him for whistleblowing. IAF, Tab 1 at 10 -30. In his complaint, the
appellant alleged tha t he had made two disclosures: (1) on September 4, 2015, he
had disclosed to his first -level superv isor “the denial of OT/CT in order to
complete excessive labor,” and (2) on May 21, 2015, he disclosed to his
first-level supervisor that he had “been receiving threats for adding OT/CT to
complete the work given.”2 Id. at 21 -22. The appellant also alleg ed that the
agency had improperly extended the length of his service obligation under a
relocation incentiv e agreement, and that his first -level supervisor had “created a
continuous toxic and hostile work environment” in which she treated him
2 “OT/CT” appears to refer to overtime and compensatory ti me off. IAF, Tab 1 at 26,
44.
3
differently b ased on race, color, and age; denied his requests for overtime;
double -booked his appointments; and took other actions against him in reprisal
for his requests for overtime and filing of an equal employment opportunity
(EEO) complaint.3 Id. at 25 -30. On May 20 and 22, 2016, the appellant
forwarded e mails and other documents to the OSC Complaints Examining Unit
(CEU). IAF, Tab 5 at 15 -127.
¶3 By letter dated June 8, 2016, the CEU notified the appellant that it had
made a preliminary determination to close its inquiry into his complaint and
provided him with an opportunity to respond within 13 days of the date of the
letter.4 Id. at 13 -15. On June 28, 2016, the CEU notified the appellant that,
having received no comments to its June 8, 2016 letter, it was closing its file.
IAF, Tab 1 at 9. On July 7, 2016, the appellant’s representative sent OSC a letter
alleging that the appellant was subjected to five additional prohibited p ersonnel
practices and requesting that they be included in the investigation or supplemental
3 In hi s OSC complaint, the appellant stated that he filed a complaint with the agency’s
Inspector General (IG) and OSC characterized the appellant’s IG complaint as a
protected activity in its close out letter. IAF, Tab 1 at 15, Tab 5 at 13. H owever, the
record does not contain a copy of the appellant’s complaint to the IG or any other
information about the IG complaint. Further, the appellant, who was represented by an
attorney at all stages of this process, has never alleged in front of the Board that his IG
complaint was a prot ected activity under 5 U.S.C. § 2302 (b)(9), despite having several
opportunities to comprehensively frame his claims , and having been placed on notice
that such activity would qualify as a prot ected activity under 5 U.S. C. § 2302 (b)(9).
IAF, Tab 1, Tab 3 at 3, Tab 5 at 1 -7. The administrative judge did not address the IG
complaint in the initial decision , and the appellant has not raised the matter in his
petition for review. IAF, Tab 7, Initial Decision (ID) ; Petit ion for Review ( PFR ) File ,
Tab 1 at 1-11. It is the parties’ prerogative to craft their case as they see fit; as the
appellant has not claimed that his IG complaint was a protected activity in front of the
Board, we need not address it.
4 The administrati ve judge noted that it was unclear whether the OSC’s CEU considered
the appellant’s December 30, 2015 complaint or another complaint. ID at 2 n.1. The
appellant has not asserted that he filed another complaint alleging reprisal with OSC
and the file number referenced in OSC’s June 8, 2016 letter matches the file number
assigned to the December 30, 2015 complaint. IAF, Tab 1 at 10, Tab 5 at 13.
Accordingly, we find that the December 30, 2015 complaint is the only OSC complaint
at issue in th is appeal.
4
investigation. IAF, Tab 5 at 132 -33. The record does not contain a response
from OSC to this letter.
¶4 On July 15, 2016, the appellant filed an IRA appeal alleging that he was
subjected to nine actions that constituted prohibited personnel pra ctices. IAF,
Tab 1 at 1 -8. The administrative judge issued an order notifying the appellant of
the elements and burdens of proof to establish Board jurisdiction over his IRA
appeal and ordering him to file evidence and argument demonstrating jurisdiction .
IAF, Tab 3 at 2 -8. The appellant filed a response to the order in which he alleged
that he was subjected to prohibited personnel practices after he disclosed
deficiencies in the care and treatment of patients. IAF, Tab 5 at 1 -6, 134 -35. His
response described eight com munications to agency officials that he allege d took
place: (1) during a May 25, 2015 meeting; (2) in a June 11, 2015 email;
(3) during a July 15, 2015 meeting; (4) in a July 15, 2015 email; (5) during a
July 16, 2015 meeting; (6) in a September 17, 2015 email; (7) during a
November 5, 2015 meeting; and (8) in a set of emails spanning November 5
and 6, 2015. Id. at 134 -35.5 The appellant alleged that the first seven
communications “concern the increasing number of patient alerts caused by the
staffing shortages in the Department and [his first-level supervisor’s] failure to
authorize sufficient CT/OT to resolve the backlog of patient alerts,” which he
made because he believed his first -level supervisor’s “patient assignment
practices pr esented a real and substantial danger to the health and safety of the
veterans/patients.” Id. The eighth communication was comprised of
communications made by other agency staff. Id. at 135. The agency filed a
response, arguing that the appellant had n ot made nonfrivolous allegations that he
5 The appellant did not explicitly allege in his appeal that he made disclosures on
May 21 or September 4, 2015, as he did in his OSC complaint. Compare IAF, Tab 1
at 1-8, Tab 5 at 1-7 with IAF, Tab 1 at 10 -30. Accordingly, we do not further discuss
the May 21 or September 4, 2015 disclosures herein.
5
made protected disclosures and those disclosures were a contributing factor in
any alleg ed personnel actions. IAF, Tab 6 at 7 -10.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction based on the written record. IAF, Tab 7, Initial Decision (ID).
The administrative judge first found that, of the eight communications the
appellant alleged were protected, he had nonfrivolously alleged that the four
communications he purportedly made to agency officials during meetings on
May 25, July 15 -16, and November 5, 2015 , were protected disclosures. ID
at 5-6.
¶6 She found that, as to the four remaining communications, the appellant did
not nonfrivolously allege that he reasonab ly believed the communication
evidenced a violation of a law, rule , or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. ID at 6 -8. Rather, the administrative judge found that
three of the communications, e mails the appellant s ent to agency officials on
June 11, July 15 , and September 17, 2015, merely reflected his requests for
overtime and a reduced caseload, and summarized a conversation with his
supervisors a bout his performance. Id. Further, the administrative judge found
that the appellant failed to nonfrivolously allege that the November 5 and 6, 2015
emails sent by other staff members were protected because he did not make the
disclosures. ID at 8. Thus, the administrative judge found that the four
disclosures were not protected.
¶7 The administrative judge then found that the appellant did not prove
exhaustion of his administrative remedies before OSC concerning the four
disclosures that he had nonfrivol ously alleged were protected. ID at 8 -12.
She found that the appellant’s complaint and correspondence to OSC did not
reflect that he notified OSC of his July 16, 2015 or November 5, 2015
communication s. ID at 9. She also found that the appellant mentio ned his
May 25 and July 15, 2015 meetings to OSC but did not provide OSC with a
6
sufficient basis to pursue an investigation that might lead to corrective action, as
he failed to provide OSC with any information that might render either
communication a protected disclosure. ID at 9 -12. The administrative judge thus
dismissed the appeal for lack of jurisdiction. ID at 12.
¶8 The appellant has filed a petition for review in which he argues that the
administrative judge erred in finding that certain disclosures regarding patient
safety were not protected and asserts that he provided OSC with a sufficient basis
on which to conduct an investigation that might lead to c orrective action .
Petition for Review (PFR) File, Tab 1 at 2-11. The agency has responded in
opposition to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 To establish Board jurisdiction over an IRA appeal brought pursuant to the
Whist leblower Protection Enhancement Act of 2012 (WPEA), the appellant must
exhaust his administrative remedies before OSC and make nonfrivolous
allegations that: (1) he made a protected disclosure descr ibed under 5 U.S.C.
§ 2302 (b)(8) or engaged in protected acti vity 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 fa ctor in the agency’s decision to take or fail to take a
personnel action as defined b y 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 (2016); see Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).6
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)
6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act , Pub. L. No. 115 -195, 132 Stat. 1510 , appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
7
(holding that an employee is not entitled to a jurisdictional hearing in an IRA
appeal) (ci ting Spencer v. Department of the Navy , 327 F.3d 1354 , 1356 (Fed.
Cir. 2003)).
¶10 The Board’s jurisdictional inquiry generally begins by examining whether
the appellant has shown that he exhausted his administrative remedies before
OSC, as the Board’s jurisdiction over an IRA appeal is limited to t hose issues
raised before OSC. See Ellison v. Merit Systems Protection Board , 7 F.3d 1031 ,
1037 (Fed. Cir. 1993) (holding that the Board correctly declined to consider
allegations of d isclosures not clearly raised before OSC)7; Miller v. Federal
Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 6 (2014) (“The firs t 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) .
The administrative judge in this case first addressed whether the appellant made a
nonfrivolous allegation that the eight communications at issue were protected
disclosures and subsequently addressed exhaustion regarding the four disclosures
that she found the appellant had nonfr ivolously alleged were protected. ID
at 4-12. The administra tive judge nevertheless correctly found that the appellant
failed to make a nonfrivolous allegation that he made protected disclosures in the
June 11, July 15, September 17, and November 5 and 6, 2015 email
communications, and that he failed to exhaust his administrative remedies
concerning the disclosures he allegedly made during meetings with agency
officials on May 25, July 15 -16, and November 5, 2015, warranting dismissal of
the entire appeal for lack of jurisdiction. Id. Accordingly, we first address the
appellant’s arguments regarding his alleged protected disclosures and then turn to
7 The WPEA, which became effective on December 27, 2012, does not affect the
relevant holding in the cited authority, nor does it affect the re levant 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). 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.
8
his arguments regarding exhaustion before OSC, concluding that the appellant has
not shown error in the administrative judge’s initial decision dismissing his
appeal fo r lack of jurisdiction.
The administrative judge correctly found that the appellant did not make a
nonfrivolous allegation that he made protected disclosures in the June 11,
July 15, September 17, and November 5 and 6, 2015 email communications.
¶11 On review, the appellant argues that the administrative judge erred in
finding that he did not nonfrivolously allege that four email communications
regarding patient alerts evidenced a substantial and specific danger to public
health or safety. PFR File, Tab 1 at 2 -9. He contends that his concerns about
unanswered patient alerts constituted imminent safety concerns “given that
treatment delays, mis -diagnosis and medical complications which [sic] could
reasonably be expected to occur within a matter of hours or even minutes.”
Id. at 4.
¶12 A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified i n 5 U.S.C. § 2302 (b)(8)(A). Salerno , 123 M.S.P.R. 230 ,
¶ 6. The test t o determine whether a putative whistleblower has a reasonable
belief that his disclosures evidenced wrongdoing is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee c ould reasonably conclude that the actions of the
Government evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id. (citing Lachance v. White ,
174 F.3d 1378 , 1381 (Fed. Cir. 1999)). Allegations must be detailed and facially
well-supported; vague, conclusory, or faci ally insufficient allegations of
Government wrongdoing do not confer jurisdiction. Johnston v. Merit Systems
Protection Board , 518 F.3d 905 , 910 (Fed. Cir. 2008).
9
¶13 In determining whether a disclosure evidenced a substantial and specific
danger to public health or safety, it is relevant for the Board to consider factors
such as: (1) the likelihood of harm resulting from the danger; (2) the immine nce
of the potential harm; and (3) the nature of the potential harm. Parikh v.
Department of Veterans Affairs , 116 M.S.P.R. 197 , ¶ 1 4 (2011) (citing Chambers
v. Department of the Interior , 515 F.3d 1362 , 1369 (Fed. Cir. 2008)).
¶14 We conclude that the administrative judge pr operly found that the appellant
did not make a nonfrivolous allegation that he disclosed a matter that a reasonable
person in his position would believe evidenced a substantial and specific danger
to public health or safety in his June 11, July 15, and Sep tember 17, 2015 emails
to his supervisors. ID at 6 -8. Although the appellant now contends that these
communications conveyed imminent patient safety concerns, the emails do not
detail facts giving rise to a reasonable expectation of harm to patients that would
likely result in the reasonably foreseeable future. The appellant’s June 11, 2015
email to his first -level supervisor and the facility Chief Nursing Officer states
that he stayed to catch up on his alerts because “I could not stand looking at them
building up,” and does not communicate anything more than the appellant’s
personal desire to reduce his alerts and receive overtime hours and pay for staying
late to do so. IAF, Tab 5 at 30. Similarly, the appellant’s July 15, 2015 email to
his superviso rs, which was sent in response to his first -level supervisor’s email
memorializing two meetings she conducted regarding his performance , also does
not reference harm to patients.8 Id. at 31 -32; IAF, Tab 6 at 246. The only
reference the appellant makes to patient care is in response to his supervisor’s
8 As noted by the Federal Circuit , in determining whether an appellant has made a
nonfrivolous allegation in an IRA appeal, the Board should not consider the appellant’s
allegations in a vacuum. Hessami v. Merit Systems Protection Board , 979 F.3d 1362 ,
1369 n.5 (Fed. Cir. 2020). The Board may consider other matters incorporated by
reference, matters integral to the appellant’s claim, and matters of public record. Id.
Accordingly , here we cite to the first -level supervisor’ s email to provide context
regarding the events that precipitated the appellant’s July 15, 2015 email. IAF, Tab 5
at 31, 32, Tab 6 at 246 .
10
request to contact her should he think of other ways she can help him “be more
efficient and manage [his] time, in order to ensure safe patient care within the
constraints of a normal work week”; his respons e opines that, “‘to ensure’ safe
care within a 40 hour work week [he] will try [his] best to come up with a great
idea because that would make [him] invaluable to any VA clinic.” IAF, Tab 5
at 32, Tab 6 at 246. His communication does not indicate any wrongdoing on the
part of the agency or that the agency’s current practices evidence a specific
danger to patient safety. IAF, Tab 5 at 32. Finally, the appellant’s September 17,
2015 email to his supervisor communicates that he “is being double booked
without discussion,” has “had some patients with serious M[ental] H[ealth]
issues,” and that his “alerts are building up and [he] cannot keep up with them,”
but does not connect these statements to a concern about patient health or safety;
instead, he reque sts a reduction in his workload. Id. at 46. Each email lacks any
indication that harm might come to patients because of the appellant’s
unprocessed alerts; accordingly, we cannot conclude that he has nonfrivolously
alleged that a disinterested observer c ould have reasonably concluded that the
matters he disclosed in each email evidenced a substantial and specific danger to
public health or safety.9
9 The appellant also argues that it was contradictory for the administrative judge to find
certain communications regarding patient alerts were protected, but not others; for
example, he cited the administrative judge’s findings that the appellant nonfrivolously
alleged that his communication in a July 15, 2015 meeting with his supervisor and the
Chief Nursing Officer was a protected disc losure, but his July 15, 2015 e mail regarding
the meeting w as not. ID at 5, 7 ; PFR F ile, Tab 1 at 4 -5. The appellant’s description of
the July 15, 2015 meeting is distinguishable from his email communication from the
same date. The plain language of the email did not establish a connection between the
appellant’s unprocessed alerts and patient safety, whereas the appellant’s description of
his communication , during the meeting, to his supervisors that certain practices resulted
in danger to or “an obstacle to competent professional care” for patients , conveyed that
he had allegedly discl osed that agency practices could harm patients . Compare IAF,
Tab 5 at 31 -32, with IAF, Tab 5 at 134 -35. Thus, the administrative judge properly
concluded that the appellant nonfrivolously alleged that certain disclosures , namely, the
appellant’s descript ion of communications during meetings he had with agency
officials , were protected, whereas others were not.
11
¶15 Nor can we agree with the appellant’s suggestion that the mere mention of
unprocessed safety alerts const itutes a disclosure of an imminent safety concern.
PFR File, Tab 1 at 4. Even assuming that patient alerts can notify healthcare
providers of imminent issues, such as abnormal test results, the appellant has not
identified the content of his unprocessed alerts and makes no more than
conclusory allegations that the alerts could cause “treatment delays,
mis-diagnosis, and medical complications.” Id. Thus, the appellant has not set
forth a sufficiently detailed allegation that his unprocessed alerts were o f the kind
that might cause imminent harm to a patient. Cf., e.g., Tatsch v. Department of
the Army , 100 M.S.P.R. 460 , ¶¶ 10 -13 ( 2005) (holding that the appellant
nonfrivolously alleged a reasonable belief that her disclosure evidenced a specific
danger to public health or safety in reporting two incidents involving the
improper triage of on -scene, late -term, unstable pregnant women in labor).
Accordingly, we affirm the administrative judge’s findings that the appellant
failed to make a nonfrivolous allegation that he disclosed a matter that a
reasonable person in his position would believe evidenced a substantial and
specific dange r to public h ealth or safety in his June 11 , July 15, and
September 17, 2015 e mails to his supervisors .
¶16 Finally, the administrative judge properly found that the November 5 and 6,
2015 email communications made by other agency staff did not constitute a
protected disclosure because the appellant did no t make the disclosure. ID at 8.
Although the appellant was copied on these communications , he was not the
source of the communications, thus the communications themselves were not
protected disclosures under 5 U.S.C. § 2302 (b)(8) vis -à-vis the appellant. IAF,
Tab 5 at 27 -29, 135. We thus affirm the administrative judge’s findings that the
appellant did not make a nonfrivolous allegation that the November 5 and 6, 2015
email communications constituted a protected disclosure.
12
The administrative judge properly found that the appellant did not exhaust his
administrative remedies before OSC concerning his alleged disclosures during
meetings with agency officials on May 25, July 15 -16, and November 5, 2015.
¶17 On review, the appellant also disputes the administrative judge’s findings
that, as to the four disclosures that he had nonfrivolously alleged were protected ,
he failed to exhaust his administrative remedies before OSC. PFR File, Tab 1
at 9-11. 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. Mille r, 122 M.S.P.R. 3 , ¶ 6. The substantive requirements of
exhaustion are met when an appellant has provided OSC with a sufficient basis to
pursue an investigation. Chambers v. Department of Homeland Security ,
2022 MSPB 8 , ¶ 10. The Board’s j urisdiction 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
communications with OSC concerning their allegations. See Baldwin v.
Department of Veterans Affairs , 113 M.S.P.R. 469 , ¶ 8 (2010).
¶18 The appellant argues that he provided OSC with a sufficient basis on which
to pursue an investigation as to each of his alleged disclosures when he informed
OSC that unanswered patient alerts represented a substantial and specific danger
to the hea lth and safety of the agency’s patients. PFR File, Tab 1 at 9 -11.
We agree with the administrative judge that the appellant did not prove
exhaustion regarding his alleged disclosures during meetings with agency
officials on May 25, July 15 -16, and Novemb er 5, 2015. ID at 8 -12.
¶19 As to the appellant’s July 16, 2015 communication t o his second -level
supervisor and his November 5, 2015 communication to his first -level supervisor ,
our review of the appellant’s OSC complaint and supplemental correspondence
reflects, as the administrative judge found, that there is no mention of either
13
communication in the appellant’s OSC complaint and subsequent correspondence.
ID at 9. We have considered the appellant’s argument that he provided OSC with
his “core” concerns about patient care but nevertheless cannot conclude that the
appellant provided OSC with a sufficient basis to investigate his July 16 and
November 5, 2015 communications to a gency officials. PFR File, Tab 1 at 9-11.
At no time in the appellant’s compla int or correspondence with OSC prior to the
closure of its file did the appellant articulate that the agency’s actions constituted
harm to patients or otherwise affected public health or safety. IAF, Tab 1
at 10-30, Tab 5 at 16 -127. Rather, the appellant ’s complaint and correspondence
to OSC concern his relocation incentive agreement and his workload, specifically
the denial of overtime and compensatory time off, and that his first -level
supervisor’s practices put him behind in his work load. IAF, Tab 1 a t 10 -30,
Tab 5 at 16 -127. Accordingly, no evidence provided to OSC suggests that the
appellant disclosed a substantial and specific danger to public health or safety to
agency officials.
¶20 The appellant contends that the emails he submitted to OSC “direc tly
concern Appellant’s growing apprehension and fear that the escalating number of
unanswered patient alerts represented a substantial and specific danger to the
health and safety of VA patients under his care,” but his correspondence to OSC
does not ment ion such a concern. PFR File, Tab 1 at 10. The appellant’s
references to alerts and patients occur in the context of his workload, which he
contends he was unable to manage, but these references do not articulate a danger
to patient health and safety. T he appellant’s September 17, 2015 email to his
supervisor is perhaps the most descriptive of patient care, but as discussed above,
it fails to connect patient care with a concern about patient health or safety, and
we cannot conclude that this email or any other communication to OSC provided
sufficient facts for OSC to pursue an investigation into a substantial and specific
danger to the health and safety of the agency’s patients . IAF, Tab 5 at 46.
14
¶21 On review, the appellant also cites to his November 19, 2015 EEO
complaint in support of his argument that he advised OSC that factors such as
“double booking of patients, staffing shortages, reduced triage times and
increased patient load” contributed to an imminent concern for patient safety, but
we do not fi nd that his EEO complaint put OSC on notice of any disclosure
regarding a substantial and specific danger to public health or safety. PFR File,
Tab 1 at 10 -11. Although the EEO complaint references the effect that case
assignments have on patient care, t reatment, and safety, there is no suggestion in
the EEO complaint that the appellant made such a disclosure outside of the
complaint; rather, his EEO complaint focuses on his allegation of disparate
treatment on the basis of race in case assignments. IAF, Tab 5 at 128 -30.
Additionally, although the appellant asserts on review that he provided the EEO
complaint to OSC, there is no evidence that he in fact submitted it to OSC. Each
of the other documents the appellant asserts he provided to OSC consist of an
email showing the date on which he sent the document to the OSC investigator
and documents referenced in the email. However, there is no such email or other
evidence showing that he sent the EEO complaint to the investigator, nor does the
appellant att est to sending the EEO complaint to OSC in the sworn affidavit he
submitted in support of his jurisdictional response. Compare IAF, Tab 5
at 16-127, 134 -35, with IAF, Tab 5 at 128 -30. Thus, the appellant has not
established that he provided his EEO complaint to OSC or that it was sufficient to
put OSC on notice that he disclosed a substantial and specific danger to public
health or safety.
¶22 The appellant also provided a July 7, 2016 letter from his attorney to OSC,
which contends that “his immediate supervisor also increased his case loan [sic]
and reduced patient consultation time periods which directly compromised patient
safety during the period May 25, 201 5 through January, 2016”; however, this
language does not suggest that he communicated this purported compromise of
patient safety to his supervisor or other agency official. IAF, Tab 5 at 132 -33.
15
Moreover, the letter was sent after OSC informed the appe llant that it closed its
investigative file, and the appellant has not provided any evidence that OSC
subsequently investigated this allegation. IAF, Tab 1 at 9, Tab 5 at 132 -33.
Accordingly, we find that the appellant has not established that this lette r, or any
other documentation he provided to OSC, provided sufficient facts for OSC to
pursue an investigation into a substantial and specific danger to the health and
safety of the agency’s patients.
¶23 Even if the appellant had provided sufficient facts t o OSC to inves tigate
wrongdoing, the July 16 and November 5, 2015 communications were new
allegations outside of any core claims he made to OSC. Although an appellant
may add further detail to his claims before the Board, he must first provide OSC
with a sufficient basis to pursue an investigation . Chambers , 2022 MSPB 8 , ¶ 10.
The appellant’s complaint to OSC mentioned that he notified his second -level
supervisor about his overtime complaints sometime after July 29, 2015, but there
is no indication that the a ppellant made any disclosure of a substantial and
specific danger to patient health or safety to his second -level supervisor prior to
that date; thus, OSC would not have had sufficient facts to pursue an
investigation of this prior alleged disclosure. IAF , Tab 1 at 17; see, e.g.,
McCarthy v. Merit Systems Protection Board , 809 F.3d 1365 , 1374 (Fed. Cir.
2016) (concluding the appellant did not pro vide OSC with a sufficient basis to
pursue an investigation concerning four legal memorand a written by the appellant
when the memoranda identified “different disclosures, made to different people,
at different times” than those disclosures identified in th e appellant’s OSC
complaint). Similarly, the appellant’s complaint and correspondence to OSC do
not identify any disclosures occurring after September 2015; accordingly, he did
not provide OSC with sufficient facts to investigate subsequent disclosures, s uch
as his alleged November 5, 2015 disclosure.
¶24 We also agree with the administrative judge that, regarding the appellant’s
alleged disclo sures during meetings on May 25 and July 15, 2015, although the
16
appellant’s complaint to OSC described these meeting s, at no time in his
description of the meetings did he articulate that the agency’s actions constituted
harm to patients or otherwise affected public health or safety. IAF, Tab 1
at 10-30. Further, none of the correspondence the appellant provided to OSC
described these meetings in a manner that would put OSC on notice that he
disclosed a substantial and specific danger to public health or safety during the
meetings. IAF, Tab 5 at 31 -32. We thus affirm the administrative judge’s
finding s that the appellant did not exhaust his administrative remedies before
OSC with respect to the communications he made to agency officials during
meeti ngs that took place on May 25 , July 15 -16, and November 5, 2015.10
¶25 Accordingly, we affirm the initial decision on the grounds that the appellant
failed to make a nonfrivolous allegation that he made protected disclosures as to
four of his communications to agency officials, and as to the remaining four
communic ations, he failed to exhaust his administrative remedies before OSC,
warranting dismissal of his IRA appeal for lack of jurisdiction.
10 In his jurisdictional response, t he appellant filed a March 14, 2016 letter from the
OSC Disclosure Unit, which notified the appellant that it wo uld take no further action
concerning his allegations of agency wrongdoing and that he could raise his allegation
of racial discrimination with the CEU. IAF, Tab 5 at 11 -12. In his complaint alleging
retaliation, filed with the CEU, the appellant asserte d that he received a letter of
counseling “after notifying . . . OSC on October 23, 2015.” IAF, Tab 1 at 19. He
further state d that, “[s]ince this . . . OSC intervention, my work environment is still
toxic.” Id. at 20. To the extent the appellant may h ave been alleging that the agency
retaliated against him for making disclosures to OSC, which may be protected under
5 U.S.C. § 2302 (b)(8)(B) or (b)(9)(C), we find that the above statements were so vague
that they did not provide OSC with a sufficient basis to pursue an investigation. In fact,
there is no indication in this record that the appellant informed the OSC CEU that he
had made disclosure s to the OSC Disclosure Unit. Moreover, even if we found that the
appellant had exhausted his remedies regarding allegations that the agency retaliated
against him for his disclosures to OSC, he did not make any such argument in his
submissions below. IA F, Tabs 1, 5. F urther , the initial decision did not address a claim
of retaliation for disclosures to OSC, and the appellant did not raise the issue in his
petition for review. IAF, Tab 7; PFR File, Tab 1. Accordingly, do not further discuss
any claim of retaliation for disclosures made to OSC.
17
NOTICE OF APPEAL RIG HTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Althou gh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to fi le within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a peti tion for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
19
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
20
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competen t jurisdiction.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 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
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 la w by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals o f competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
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 | BARRETT_KEVIN_J_SF_1221_16_0632_W_1_FINAL_ORDER_2025883.pdf | 2023-04-27 | null | SF-1221 | NP |
3,214 | https://www.mspb.gov/decisions/nonprecedential/COLODNEY_NATHAN_PH_1221_16_0126_W_1_FINAL_ORDER_2025909.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NATHAN COLODNEY,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
PH-1221 -16-0126 -W-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL*
Nathan Colodney , Alexandria, Virginia, pro se.
Christina Patton Black , Washington, D.C., for the agency .
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a p etition for review of the initial decision, which
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;
* A nonprecedential order is one that the Board has determined does not add
significantly to the 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 available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 As further detailed previously in the initial decision for the instant appeal,
the agency appointed the appellant to a Senior Executive Service (SES) position
in October 2004. Colodney v. Department of Health and Human Services , MSPB
Docket No. PH-1221 -16-0126 -W-1, Initial Appeal File (0126 IAF), Tab 32,
Initial Decision (0126 ID) at 1 -2. Two months later, in December 2004, the
agency effectuated his performanc e-based probationary termination. 0126 ID
at 3. The agency then placed him in a GS -15 position, which the appellant
resigned from in May 2005. Id.
¶3 Between his probationary termination from the SES position and resignation
from the GS -15 position, the a ppellant filed an equal employment opportunity
(EEO) complaint concerning his SES termination and the investigation leading up
to it. 0126 IAF, Tab 10 at 8 -11. In a final agency decision (FAD), the agency
found no support for the appellant’s allegations of discrimination. Id. at 12 -27.
The Equal Employment Opportunity Commission affirmed the FAD. Id. at 28 -31.
The appellant also filed related claims in district courts, but they were also
unsuccessful. See id . at 33 -34.
3
¶4 In addition to the aforemention ed actions, the appellant filed prior Board
appeals concerning his brief tenure with the agency. He filed his first Board
appeal in 2006, alleging that the agency improperly terminated his SES position
and his subsequent resignation was involuntary. 0126 ID at 2; Colodney v.
Department of Health and Human Services , MSPB Docket No. PH-0752 -06-0217 -
I-1, Initial Appeal File, Tab 24, Initial Decision (0217 ID). The administrative
judge dismissed the appeal. 0217 ID. First, she found that the Board lacked
jurisdiction over his probationary termination from the SES position. 0217 ID
at 2-3. Next, she found that the appellant failed to show or even nonfrivolously
allege that his resignation from the GS -15 position was involuntary. 0217 ID
at 3-8. On review , the Board affirmed, as did our reviewing court. Colodney v.
Department of Health and Human Services , MSPB Docket No. PH -0752 -06-0217 -
I-1, Final Order (Aug. 15, 2006), aff’d , 244 F . App’x 366 (Fed. Cir. 2007). The
appellant filed his second Board appeal in 2007, again challenging his termination
from the SES position. 0126 ID at 2; Colodney v. Department of Health and
Human Services , MSPB Docket No. PH -3443 -07-0499 -I-1, Initial Appeal File,
Initial Decision (0499 ID). The administrative judge also dismissed that appeal,
finding that it was barred by collateral estoppel. 0499 ID at 3 -5. Once again, the
Board and our reviewing court affirmed. Colodney v. Department of Health and
Human Services , MSPB Docket No. PH -3443 -07-0499 -I-1, Final Order ( Mar. 17,
2008 ), aff’d , 314 F . App’x 312 (Fed. Cir. 2008).
¶5 Many years later, in 2015, the appellant filed a whistleblower reprisal
complaint with the Office of Special Counsel (OSC) concerning his 2004
probationary termination from the SES position. 0126 ID a t 3. In it, he identified
two alleged disclosures. 0126 IAF, Tab 1 at 15. The first disclosure reportedly
occurred in November 2004, while he was being investigated for making
inappropriate remarks to subordinates. Id. According to the appellant’s OSC
complaint, he disclosed to a subordinate that “he believed a panel of four females
was discriminatory, that he would not be treated fairly because there was no
4
diversity of thought in that not a single male was included on the panel, and they
would not ha ve permitted a panel of four males to investigate a female.” Id. The
second disclosure reportedly occurred in January 2005, when the appellant sent a
letter to the deciding official about his already effectuated termination . Id. at 16.
In this letter, the appellant reportedly disclosed that “the removal was unlawful
since he was required to be on a performance improvement plan and was not.
Furthermore, the SES [Executive Core Qualifications] are not automatic
performance objectives for probationary app ointees.” Id.
¶6 After exhausting his whistleblower retaliation allegations with OSC, the
appellant filed the instant IRA appeal. 0126 ID at 3. The administrative judge
issued an initial decision that dismissed the appeal for lack of jurisdiction. Id.
The appellant has filed a petition for review. Colodney v. Department of Health
and Human Services , MSPB Docket No. PH -1221 -16-0126 -W-1, Petition for
Review (0126 PFR) File, Tab 4. The agency has filed a response and the
appellant replied. 0126 PFR File, Tabs 6 -7.
The administrative judge properly dismissed this IRA appeal for lack of
jurisdiction.
¶7 To establish jurisdiction in an IRA appeal such as this, involving allegations
of whistleblower reprisal, an appellant must show that he exhausted his
administr ative remedies before OSC and make nonfrivolous allegations that
(1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) , and
(2) the disclosure was a contributing factor in the ag ency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A) . Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). The
administrative judge found that the appellant’s first disclosure was not protected
under sect ion 2302(b )(8) because it constituted a claim of discrimination.
0126 ID at 10-12. He also found that the appellant could not nonfrivolously
allege that the second disclosure was a contributing factor in his removal because
it occurred after that removal. 0126 ID at 13.
5
Disclosure 1
¶8 On review, the appellant reasserts that his first disclosure, pertaining to his
belief that an investigatory panel comprised solely of women was discriminatory,
is protected whistleblowing under section 2302(b)(8). 0126 PFR File, Tab 4
at 11, 13, 15 -26, 34. We disagree. As the administrative judge properly
explained, allegations of an agency engaging in discrimination in violation of
Title VII are covered under 5 U.S.C. § 2302 (b)(1) and (b)(9), but are excluded
from coverage under section 2302(b)(8). See Edwards v. Department of Labor ,
2022 MSPB 9 , ¶¶ 10, 22 ; McDonnell v. Department of Agriculture , 108 M.S.P.R.
443, ¶ 22 (2008). The appellant argues to the contrary on the basis that he made
the disclosure prior to filing his EEO complaint. 0126 PFR File, Tab 4 at 11,
15-16, 19 -22, 34. However, the Board has concluded that this is not a meaningful
distinction. See Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 84
(2001) (recognizing that disclosures involving alleged discrimination, even if
made outside the grievance or E EO processes, do not constitute protected
whistleblower activity under section 2302(b)(8) because they pertain to matters
covered by section 2302(b)(1)).
¶9 Separately, the appellant also suggests that the panel of women who were
reportedly tasked with invest igating his conduct were biased for reasons other
than their gender. 0126 PFR File, Tab 4 at 16 -18, 25. He alleges that one of
them exhibited bias by instructing him to stop making inappropriate comments
before investiga ting whether any had occurred, two others were biased because
they were not selected for his position , and one more was biased because she was
adversely impacted by his selection. Id. The appellant also alleges that it was an
abuse of author ity for the agency to impanel such a biased gro up of individuals to
investigate his actions. Id. at 18, 23 -26. Even if true, we cannot address the
allegations of abuse of authority because these matters are not what the appellant
reportedly disclosed and exhausted before OSC. See Mason v. Department of
6
Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011) (recognizing that, in an IRA
appeal, the Board may only consider disclosures of i nformation and personnel
actions that the appellant raised before OSC). Thus, he did not provide OSC with
a sufficient basis to pursue an investigation of those matters. See Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶ 10. According to his OSC
complaint, the appellant disclosed that “he believed a panel of four females was
discriminatory, that he would not be treated fairly because there was no diversity
of thought in that not a single male was included on the panel, and that they
would not have permitted a panel of four males to investigate a female.” 0126
IAF, Tab 1 at 15. Other complaint s the appellant may have about the
investigatory panel are not properly before us in this IRA appeal.
Disclosure 2
¶10 For his second disclosure, that the agency violated the law in effectuating
his probationary termination from the SES position , the appellant does not appear
to dispute the administrative judge’s conclusion that it could not have been a
contributing factor in that termination. 0126 ID at 13. In fact, he acknowledges
that the disclosure occurred after the termination. 0126 PFR File, Tab 4 at 13.
He does, however, appear to misunderstand the dispositive nature of that timing.
As stated above, the appellant’s jurisdictional burden in this IRA appeal includes
a requirement that he nonfrivolously allege that a protected disclosure was a
contributing factor in the personnel action at issue. Supra ¶ 7. A disclosure such
as this one, occurring after his probationary termination, cannot be considered a
contributing factor in that personnel action. See Sherman v. Department of
Homela nd Security , 122 M.S.P.R. 644 , ¶ 8 (2015). We recognize the appellant’s
suggestion that, although his termination was a personne l action that occurred
before his disclosure, the agency ’s failing to reverse itself and give him his job
back after he made the disclosure is a separate personnel action. 0126 PFR File,
Tab 4 at 16, 28, 33. However, we are not persuaded. See Simmons v. Small
7
Business Administration , 115 M.S.P.R. 647 , ¶ 14 (2011) (dismissing an IRA
appea l for lack of jurisdiction when the employee invoked reinstatement as the
covered personnel action, but she failed to make any nonfrivolous allegations that
she was entitled to reinstatement; she merely reargued the merits of her prior
removal appeal and the validity of her settlement agreement, sug gesting
reinstatement as a related remedy).
The appellant’s remaining arguments do not warrant a different result.
¶11 Separate from the dispositive jurisdictional issues, the appellant argues that
the administrative judge in the instant appeal acted inappro priately by, inter alia,
exhibiting bias, intentionally ignoring the law, committing fraud, and looking for
a way to dismiss the instant appeal and conceal the truth. 0126 PFR File, Tab 4
at 8-9, 21-23, 28 -32, 34 -37. In making a claim of bias or prejudic e against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior , 81 M.S.P.R. 101 , ¶ 7 (1999). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if his comments or actions evidence “a deep -seated favorit ism
or antagonism that would make fair judgment impossible.” Bieber v. Department
of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United
States , 510 U.S. 540 , 555 (1994)). Here, the appellant has identified nothing of
the sort. It is evident that the appellant disagrees with the administrative judge’s
decision, but he has failed to establish that the administrative judge was biased or
otherwise acted inappropriately.
¶12 The appellant also devotes a significant portion of his petition for review to
matters that are not relevant to the instant appeal, many of which instead
implicate his prior Board appeals. See supra ¶ 4. For example, the appellant is
adamant that the agency relied on improper performance standards to terminate
him from the SES position in 2004 and otherwise acted inappropriately during the
time leading up to that termination. 0126 PFR File, Tab 4 at 8 -14, 18 -19, 26 -27,
8
30-31, 33. In addition, he disputes the voluntariness of his 2005 resignation from
the GS -15 position and suggests that the admini strative judges presiding ov er his
prior Board appeals also were biased. Id. at 10, 14, 30, 36. Because these and
other such arguments are not relevant to the instant IRA appeal, we will not
address them further.
NOTICE OF APPEAL RIGHTS†
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your sit uation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your cl aims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
† Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
9
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. C ourt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for th e Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that i s appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
10
you do, then you m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respe ctive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employme nt
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opp ortunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 Board’s
disposition of allegations of a prohibited personne l 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.‡ The court of appeals must 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.
‡ The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | COLODNEY_NATHAN_PH_1221_16_0126_W_1_FINAL_ORDER_2025909.pdf | 2023-04-27 | null | PH-1221 | NP |
3,215 | https://www.mspb.gov/decisions/nonprecedential/MARTINEZ_RUDOLPH_DE_0752_21_0052_I_1_FINAL_ORDER_2025929.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RUDOLPH MARTINEZ, JR.,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -21-0052 -I-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lance O. Taylor , Pueblo, Colorado, for the appellant.
Stephen Coutant , Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairma n
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The a ppellant has filed a petition for review of the initial decision, which
mitigated his removal to a 30 -day suspension. 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 fu ture decisions. In contrast, a
precedential decision issued as an Opinion and 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 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 re view and AFFIRM the initial
decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant reiterates his arguments from below and contends
that the administrative judge improp erly denied certain witnesses. We find the
appellant has not shown that the administrative judge abused his discretion in
denying his requested witnesses. See Franco v. U.S. Postal Service , 27 M.S.P.R.
322, 325 (1985) (holding that an administrative judge has wide discretion under
the Board’s regulations to exclude witnesses when it has not been shown that
their testimony would be relevan t, material, and nonrepetitious); 5 C.F.R.
§ 1201.41 (b)(8), (10). Furthermore, the appellant’s mere disagreement with the
administrative judge’s findings of fact and credibility determinations does not
provide a basis for reversing the initial decision. See Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶3 We deny the appellant’s petition for enforcement of the interim relief order,
as there is no authority that pr ovides f or filing a motion to compel interim relief .
3
See Dean v. Department of the Army , 57 M.S.P.R 296 , 300 (1993). Furthermore,
because this order represents the Board’s final decision in this appeal, the interim
relief period has now expired. If the appellant believes the agency is not in
compliance with the Board’s final order, he may file a petition for enforcement in
accordance with the Board’s regulations . See 5 C.F.R. § 1201.182 (a).
ORDER
¶4 We ORDER the agency to cancel the remova l and substitute in its place a
30-day suspension without pay. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶5 We als o ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amoun t 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.
¶6 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 appella nt, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶7 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 ap peal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
4
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶8 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 wit h all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT T O 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 770 1(g), 1221(g), o r 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights des cribed 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 applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropria te one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seek ing
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide fo r Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 m ay visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants t hat
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Boar d and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district cour t (not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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 decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiri ng a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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
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 t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
December 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. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appe als can be found at thei r
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during th e 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, ref unds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adju stments 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 accorda nce 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 prov ide 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. | MARTINEZ_RUDOLPH_DE_0752_21_0052_I_1_FINAL_ORDER_2025929.pdf | 2023-04-27 | null | DE-0752 | NP |
3,216 | https://www.mspb.gov/decisions/nonprecedential/WALTON_FRANK_CH_0752_15_0550_I_1_FINAL_ORDER_2025941.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FRANK WALTON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -15-0550 -I-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter M. Napolitano , Esquire, Clarksville, Tennessee, for the appellant.
Jonathan Marshall and Katherine E. Griffis , Esquire , Fort Campbell,
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
sustained his removal. On petition for review, the appellant argues that the
charges and specifications should not have been sustained and that the
administrative judge erred in determining that he failed to prove his 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
requi red to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 harmful procedural error and a violation of his due process rights .
The appellant also argues that the administrative judge erred in her disparate
penalty analysis, made erroneous credibility determinations, and that the penalty
of removal was unreasonable. Generally, we grant petitions such as this one only
in the foll owing 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 administrat ive judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or le gal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that 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 M ODIFIED to
apply the correct standard for evaluating the appellant’s claim of retaliation for
equal employment opportunity activity, we AFFIRM the initial decision.
¶2 As the administrative judge correctly noted, in order to prove an affirmative
defense of discrim ination or retaliation under Title VII , an appellant must show
that the prohibited consideration was a motivating factor in the contested
personnel action. Initial Appeal File, Tab 49, Initial Decision ( ID) at 33; see
Pridgen v. Office of Management and B udget , 2022 MSBP 31 , ¶¶ 21-22, 30 . In
making this showing, an appellant may rely on direct evidence or any of the three
types of circumstantial evidence described in Troupe v. May Department Stores
Co., 20 F.3d 734 (7th Cir. 1994), i.e., pretext, comparator , or “convincin g
mosaic,” either alone or in combination. Pridgen , 2022 MSPB 31 , ¶ 24.
¶3 At one point in her initial decision, the administrative judge used language
suggesting that “convincing mosaic” describes the overall evidentiary standard
3
for a Title VII claim . ID at 29. This is not accurate. See Ortiz v. Werner
Enterprises, In c., 834 F.3d 760 , 764-65 (7 th Cir. 2016); Gardner v. Department
of Veterans Affairs , 123 M.S.P.R. 6 47, ¶¶ 28 -29 (2016) , clarified by Pridgen ,
2022 MSPB 31 , ¶¶ 23 -24. As explained above, “convincing mosaic” merely
describes one type of evidence that , either alone or in combination with other
evidence, an appellant may introduce in support of his claim . See Pridgen ,
2022 MSPB 31 , ¶ 24. Nevertheless, reading the initial decision as a whole, we
find that the administrative judge conducted a proper analysis of these issues an d
that her findings were based on her consideration of the totality of the evidence .
ID at 27 -36, 27 n.5 . Therefore, although we modify the initial decision to correct
its misuse of the term “convincing mosaic,” we find that matter did not prejudice
the appellant’s substantive rights. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984).
¶4 Because the appellant did not pro ve that discrimination or retaliation were
motivating factors in his removal, we do not reach the issue of whether either of
these considerations were a “but-for” cause of his removal . See Pridgen ,
2022 MSPB 31 , ¶¶ 20 -22, 29 -33.
NOTICE OF APPEAL RIG HTS2
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 whi ch 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 approp riate for your situation an d
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
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law app licable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible ch oices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in gene ral. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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 servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil act ion with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit 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 d ecision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of f ees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WALTON_FRANK_CH_0752_15_0550_I_1_FINAL_ORDER_2025941.pdf | 2023-04-27 | null | CH-0752 | NP |
3,217 | https://www.mspb.gov/decisions/nonprecedential/MATHIAS_JAMES_J_AT_844E_20_0743_I_1_FINAL_ORDER_2025945.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES J. MATHIAS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -20-0743 -I-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah Bachmeyer Kille , Esquire, Lexington, Kentucky, for the appellant.
Jo Bell , 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 agency has filed a petition for review of the initial decision, which
reversed the reconsideration decision of the Office of Personnel Management
1 A nonprecedential order is one tha t the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 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
(OPM) and granted the appellant’s application for disability retirement benefits
under the Federal Employe es’ Retirement System (FERS). 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 r egulation 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, a nd the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, sectio n 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for gran ting
the petition . Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 To be eligible for a disability retirement annuity under FERS, an appellant
must establish the following elements: (1) he completed at least 18 months of
creditable civilian service; (2) while employed in a position subject to FERS, he
became disa bled because of a medical condition, resulting in a deficiency in
performance, conduct, or attendance, or, if there is no such deficiency, the
disabling medical condition is incompatible with either useful and efficient
service or retention in the position ; (3) the disabling medical condition is
expected to continue for at least 1 year from the date that the application for
disability retirement benefits was filed; (4) accommodation of the disabling
medical condition in the position held is unreasonable; an d (5) the employee did
not decline a reasonable offer of reassignment to a vacant position. Chavez v.
Office of Personnel Management , 111 M.S.P.R. 69 , ¶ 6 (2009). The
3
administrative judge found that the appellant met his burden of proving each of
the aforementioned elements. Initial Appeal File (IAF), Tab 19, Initial Decision
(ID) at 2, 9 -12. The parties do not challenge the findi ngs that the appellant
established elements 1, 4, and 5, and we see no reason to disturb them. Petition
for Review (PFR) File, Tab 1 at 5.
¶3 OPM argues that the administrative judge erred in finding that the
appellant’s medical conditions were incompatib le with useful and efficient
service because he submitted no competent medical ev idence to support his claim
to FERS disability retirement annuity benefits. Id. at 6-7. Specifically, OPM
argues that the appellant’s medical evidence from 2016 and 2017 is too stale and
not revived by objective medical evidence surrounding his 2019 resignation. Id.
at 7. We are unpersuaded.
¶4 An appellant can establish that his medical conditions are incompatible with
useful and efficient service by showing the condition is inconsistent with working
in general, working in a particular line of work, or working in a particular type of
setting. Rucker v. Office of Personnel Management , 117 M.S.P.R. 669 , ¶ 10
(2012) . A determination on eligibility for disability retirement shou ld take into
account all competent medical evidence, including both objective clinical
findings and qualified medical opinions based on the applicant’s symptoms.
Chavez , 111 M.S.P.R. 69 , ¶ 7. In addition, the determination should include
consideration of the applicant’s own subjective evidence of disability and any
other evidence of the effect of his condition on his ability to perf orm in the
position he last occupied. Id.
¶5 Contrary to OPM’s assertion, the appellant submitted medical evidence
from just before his January 2019 resignation and from a few months following
his January 2020 a pplication for disability retirement. Specif ically, he submitted
records of a December 2018 physical examination and audiogram, which predat e
his resignation by just a month. IAF, Tab 11 at 108 -14, Tab 12 at 92 -94, Tab 13
at 59. He additionally submitted a functional capacity evaluation and statem ents
4
from his do ctor and nurse practitioner dated within 6 months after his application
for disability retirement. IAF, Tab 11 at 21-37, Tab 13 at 70 -71. To the extent
this medical evidence was not submitted to OPM prior to its reconsideration
decision, the Board is not limited to review of the record before OPM ; rather, the
Board must consider all relevant evidence in adjudicating a disability retirement
appeal. Cook v. Office of Personnel Management , 31 M.S.P.R. 683 , 686 (1986).
Moreover, an appellant need not establish his disability retirement eligibility
solely on objective medical evidence but may rely on subjective evidence,
including the appellant’s own description of his symptoms as reported to a
medical professional . Vanieken -Ryals v. Office of Personnel Management ,
508 F.3d 1034 , 1040 -41 (Fed. Cir. 2007) ; Henderson v. Office of Personnel
Management , 117 M.S.P.R. 313 , ¶¶ 21, 23 (2012); Cook , 31 M.S.P.R. at 686 .
¶6 The administrative judge here evaluated all of the relevant evidence and
concluded, based on sound reasoning, that the appellant ’s medical conditions
were incompatible with useful and efficient service . ID at 7 -12. This included
the r ecords of the December 2018 physical examination , which noted that the
appellant suffered from hearing loss, swollen and painful joints, severe
headaches, leg cramps, arthritis, trick knee, and foot trouble and did not show as
check ed for either box asking whether the appellant “is qualified for” or “is not
qualified for ” his position. IAF, Tab 11 at 108-09, 114. This is corroborated by
the audiogram conducted on the same date , which revealed that hearing loss was
present, includ ing mild hearing loss in t he appellant’s right ear and severe hearing
loss in his left ear. IAF, Tab 12 at 93. The medical evidence demonstrates that
the appellant’s hearing loss had been worsening in both ears . Id. at 82, 84, 93.
¶7 The administrative judge further considered a post-resignation evaluation of
the appellant , which noted limitations on sitting for more than 1 hour, standing
for more than 40 minutes, or walking more than 0.3 miles. ID at 6, 8; IAF,
Tab 13 at 37 -40. The evaluation noted a moderate pain profile during the testing ,
finding the appellant’s reports of pain correlated with observed behaviors during
5
testing. Id. at 37. The appellant’s reports of pain ranged from functionally
disabling pain to very disabling pain concentrated over the left wrist, lef t elbow,
and hips and knees. Id. Ultimately, the evaluation found the app ellant functional
at the “light -medium to medium” physical demand level. Id. at 39. The
administrative judge noted that , although the examination would have been more
helpful had it been closer to the date of the appellant’s resignation, it nonetheless
provided some value. ID at 11. Post -resignation medical evidence can be
probative of a prior disability if “proximity in time, lay testimony, or some other
evidence provides the re quisite link to the relevant period.” Reilly v. Office of
Personnel Management , 571 F.3d 1372 , 1382 (Fed. Cir. 2009). The
administrative judge specifically found that the limitations noted in the
post-resignation evaluation were corroborated by the testimony of the appellant
and his wife as well as the medical evidence from prior to his resignation . ID
at 11.
¶8 Regarding the testimony, the admi nistrative judge credited the appellant’s
assertion that he could not safely or effectively perform the duties of the position.
Id. She further credited the appellant’s wife ’s testimony that, at the end of his
career, the appellant could barely walk down a flight of steps and had to watch
television at full volume and with closed captions due to his hearing loss. ID
at 6, 8, 11. It is well established that subject ive evidence including testimony
may be entitled to great weight on the matter of disability, especially whe n such
evidence is uncontradicted by the record. Henderson , 117 M.S.P.R. 313 , ¶ 23.
The Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). OPM has not challenged these
credibility determinations , and we see no sufficiently sound reasons to disturb
them.
6
¶9 Ultimately, t he administrative judge found the appellant’s medical
conditions and limitations incompatible w ith his position as a Federal Air
Marshal , which required him to perform “arduous tasks ,” including lifting,
pushing, pulling, subduing individuals, bending, walking up to 2 miles per day,
and standing up to 3.3 hours at a time. ID at 8; IAF, Tab 12 at 98 -106. She
further found the appellant’s hearing loss to be incompatible with his position,
which required him to hear orders and instructions from up to 15 feet away,
communicate and overhear conversations in a noisy environment, and “process
auditory inf ormation on a continual basis and be capable of differentiating
between auditory inputs.” ID at 8; IAF, Tab 12 at 98, 104.
¶10 In reaching her conclusion, the administrative judge properly considered the
December 2018 physical examination and audiogram from b efore the appellant’s
resignation, his post-resignation functional capacity evaluation , and test imony
from the appellant and his wife . ID at 7 -12; see Henderson , 117 M.S.P.R. 313 ,
¶ 19 (noting that the Board should consider objective clinical findings, diagnosis
and medical opinions, an d subjective evidence of pain and disability in
determining entitlement to disability retirement). Indeed, nothing in the law
mandates that a single provider tie all of this evidence together. Henderson ,
117 M.S.P.R. 313 , ¶ 19. Accordingly, OPM’s argument that the appellant failed
to submit competent medical evidence surrounding his resignation is simply not
supported by th e record.
¶11 OPM additionally argues that, because the appellant failed to prove his
disability was incompatible with useful and efficient service, there was no
disability expected to last at least 1 year after the date of application. PFR File,
Tab 1 at 6 -7. As set forth above, the administrative judge correctly determined
that the appellant’s medical condition was incompatible with useful and efficient
service . The appellant’s doctor and nurse practitioner both certified to OPM that
the appellant’s cond itions would last at least 1 year from the ir assessments of the
appellant. IAF, Tab 11 at 21 -27. Accordingly, we agree with the administrative
7
judge that the appellant’s disabling conditions will last more than 1 year from the
date of his application for disability retirement benefits. ID at 11 -12. OPM has
not otherwise challenged the administrative judge’s findings or provi ded any
basis for reversal, and we decline to disturb those well -reasoned findings.
¶12 In response to the agency’s petition for revi ew, the appellant argues that the
administrative judge incorrectly determined that he was not entitled to interim
relief . PFR File, Tab 3 at 8 -9. Although a n agency’s failure to provide interim
relief can be a basis for dis missing a petition for review, 5 C.F.R. § 1201.116 (d),
we can find nothing in the record demonstrating that the administrative judge
issued any order concerning interim relief. Thus, the agency was not obligated to
provide interim relief. See Francois v. Office of Personnel Management ,
64 M.S.P.R. 191 , 193 n.1 (1 994) (finding OPM was not required to provide
interim relief when the administrative judge did not issue any order concerning
such relief). Moreover, because the issuance of this decision terminates the
interim relief period, the appellant’s motion for in terim relief is now moot.
Erickson v. U.S. Postal Service , 120 M.S.P.R. 468 , ¶ 12 (2013). If, however, the
appellant believes th at OPM is no t in compliance with the now-final decision in
this matter , he may file a petition for enforcement with the regional office. See
Francois , 64 M.S.P.R. at 193 n.1; 5 C.F.R. § 1201.182 .
ORDER
¶13 We ORDER OPM to grant the appellant ’s application for disability
retirement. OPM must complete this action no later than 20 days after the date of
this decision.
¶14 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, s hould ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
8
¶15 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not ful ly 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 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).
Altho ugh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
jurisdiction. If you wish to seek review of 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 within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 app eals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistlebl ower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat . 1510.
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of App eals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals fo r the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MATHIAS_JAMES_J_AT_844E_20_0743_I_1_FINAL_ORDER_2025945.pdf | 2023-04-27 | null | AT-844E | NP |
3,218 | https://www.mspb.gov/decisions/nonprecedential/COLPITTS_ROBERT_M_PH_0752_17_0398_I_1_REMAND_ORDER_2025953.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT M. COLPITTS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -17-0398 -I-1
DATE: April 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Robert M. Colpitts , Peabody, Massachusetts, pro se.
Michael Potter , Providence, Rhode Island, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellant has filed a petiti on for review of the initial de cision, which
dismissed his constructive removal appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for rev iew,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was the GS -0201 -13/8 Chief of Human Resources for the
agency’s Edith Nourse Rogers Memorial Veterans Hospita l (Bedford VA) in
Bedford, Massachusetts, from September 2010 until May 29, 2016, when he
transferred to the Department of the Air Force as a GS -0301 -12/10 Resources
Specialist. Initial Appeal File (IAF), Tab 1 at 1, 7 -9, 25-26, Tab 7 at 37.2 The
appella nt alleges that he had a productive working relationshi p with his
second -line supervisor, the Bedford VA Director , until mid-June 2015 , after
which she allegedly created a hostile work environment and intolerable working
conditions for him until his May 20 16 transfer . IAF, Tab 1 at 24 -26, Tab 6 at 4 -6,
25, 27 .
¶3 Subsequently, the appellant filed an eq ual employment opportunity (EEO)
complaint in which he alleged discrimination based on age, race, and sex, and in
which h e alleged that his May 29, 2016 trans fer to the Air Force constituted a
constructive removal. IAF, Tab 1 at 22 -39, Tab 6 at 28 -31, Tab 7 at 28 -34. The
agency issued a final agency decision on August 8, 2017, in which it found no
discrimination, no hostile work environment, and that no const ructive removal
occurred. IAF, Tab 1 at 22 -39.
¶4 The appellant timely filed this appeal with the Board challenging his
May 2016 transfer as a cons tructive removal. Id. at 3. The administrative judge
informed the appellant that the Board lacks jurisdiction over presumed voluntary
actions like resignations or removals unless the action was the result of duress,
coercion, or misrepresentatio n by the agency. IAF, Tab 2 at 2. The
2 The appellant’s Executive Career Field Performance Appraisal lists his Chief of
Human Resources assignment date as September 27, 2009. IAF, Tab 7 at 37. However,
whether the appellant became Chief of Human Resources in 2009 or 2010 does not
affect our disposition of this petition for review .
3
administrative judge ordered the appellant to file evidence that hi s May 2016
transfer to the Air Force was within the Board’s jurisdiction. Id. at 3; IAF, Tab 4.
After reviewing the appellant’s jurisdictional submission and the agency’s motion
to dismiss , IAF, Tabs 6 -8, the administrative judge issued an initial decisi on that
dismissed the appeal for lack of jurisdiction without holding the requested
hearing, IAF, Tab 11, Initial Decision (ID) at 1, 7. The administrative judge
found that the appellant , despite his allegations suggesting “a very unpleasant
relationship with the Director ,” failed to nonfrivolously allege facts that would
establish that his May 29, 2016 transfer result ed from coercion or intolerable
work ing conditions . ID at 4 -6.
¶5 On review, the appellant asserts that the administrative judge should have
held a hearing at which he would have proven his constructive removal claim and
that, considering the totality of the circumstances rather than each instance of
workplace hostility in isolation, intolerable working conditions existed that
required him to transfer in May 2016 . Petition for Review (PFR) File, Tab 1
at 4-8.3 The agency has filed a response and asserts that there is no basis to
disturb the administrative judge’s decision . PFR File, Tab 3 at 4 -9.
3 The appellant includes two documents with his petition for review —a screenshot of
his Resources Specialist application package status and a June 2016 email to schedule
his testimony for an Administrative Investigation Board into the Bedford VA Director ’s
alleged creation of a hostile work environment. PFR File, Tab 1 at 9 -11. Both of these
documents were available to the appellant prio r to the close of record before the
administrative judge . Under 5 C.F.R. § 1201.115 (d), the Board will not consider
evidence submitted for the first time with the petition for review ab sent a showing that
it was unavailable before the reco rd was closed despite the party’ s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R . 211 , 214 (1980). Thus, we have not
considered either document as grounds for granting his petition for review . On remand,
however, the appellant may resubmit these documents consistent with the procedures
and time limits established by the administrati ve judge regarding further development
of the record.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appel lant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. Parrot t v. Merit Systems Protection Board ,
519 F.3d 1328 , 1332 (Fed. Cir. 2008); 5 C.F.R . § 1201.56 (b)(2) (i)(A) . An
employee -initiated action, such as a retirement or resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). Nevertheless, t he Board has
recognized that employee -initiated actions that appear voluntary on their face are
not always so and the Board may have jurisdiction over such actions as
constructive adverse actions. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7
(2013). A ll constructive adverse actions have two things in common: (1) the
employee lacked a meaningful choice i n the matter; and (2) it was the agency’s
wrongful actions that deprived the employee of that choice. Id., ¶ 8. An
involuntary resignation is equivalent to a constructive removal and therefore
within the Board’s jurisdiction. Garcia v. Department of Homeland Security ,
437 F.3d 1322 , 1328 (Fed. Cir. 2006) (en banc). Similarly, an involuntary
inter -agency transfer, even without loss of grade or pay,4 is analogous to a
constructive removal . Colburn v. Department of Justice , 80 M.S.P.R. 257, ¶¶ 5-6
(1998); see also Roach v. Department of the Army , 86 M.S.P.R. 4, ¶ 17 (2000).
¶7 In cases such as this one, when the appellant alleges th at the agency made
working conditions so intolerable that he w as coerced to resign , the Board will
find the resignation involuntary only if the appellant demonstrates that the agency
engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in his position would ha ve felt compelled to
4 Although our involuntary inter -agency transfer precedent does not require the loss of
grade or pay , here the appellant nonfrivolously alleges that his transfer resulted in the
reduction in his grade from GS -13, step 8, to GS -12, step 10, and the reduction in his
pay of approximately $13,000 . IAF, Tab 1 at 7 -8, 25 -26, 35, Tab 6 at 4 , 7, 17, 19,
Tab 7 at 35-37. A constructive reduction in grade or pay is an adverse action within the
Board’s jurisdict ion. See 5 U.S.C. § 7512 (3)-(4); Bean , 120 M.S.P.R. 397 , ¶ 8 .
5
resign. See Vitale , 107 M.S.P.R. 501, ¶ 20 ; Colburn , 80 M.S.P.R. 257, ¶ 5 . The
doctrine of coerced involuntariness is “a narrow one” and does not apply if the
employee resigns or ret ires because 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 he feels that he has no realistic option but to leave.”
Staats v. U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996). “[T]he fact
that an employee is faced with an unpleasant situation or that his choice is limited
to two un attractive options does not make his decision any less voluntary.” Id.
The touchstone of the “voluntariness” analysis is whether, considering the totality
of the circumstances, factors operated on the employee’s decision -making process
that deprived him of his freedom of choice. Vitale , 107 M.S.P.R. 501, ¶ 19; see
also Bean , 120 M.S.P.R. 397, ¶¶ 8, 11 (explaining that the agency ’s wrongful
actions must have deprived the employee of a meaningful choice). The Board
must consider all of the surrounding circumst ances, including events not
immediately preceding the resignation or transfer , when measuring a resignation’s
voluntariness . Shoaf v. Department of Agriculture , 260 F.3d 1336 , 1342 (Fed.
Cir. 2001) . When an appellant raises an allegation of discrimination in
connection with a claim of involuntariness, the allegation may be addressed only
insofar as it relates to the issue of voluntariness. Axsom v. Department of
Veterans Affairs , 110 M.S.P.R. 605, ¶ 12 (2009).
¶8 Once an appellant presents nonfrivolous allegations5 of B oard jurisdiction,
he is entitled to a hearing at which he must prove jurisdiction by a preponderance
of the evidence. Parrott , 519 F.3d at 1332 . In assessing whether a n appellant has
made nonfrivolous allegations that would entitle him to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence contradicts the appellant’s
otherwise prima fac ie showing of jurisdiction, the administrative judge may not
5 A non frivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
6
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325,
329 (1994).
¶9 The appellant has asserted that the Bedford VA Dir ector created hostile and
intolerable working conditions from June 2015 until May 2016 by, among other
things, pressuring his first -line supervisor to downgrade his performance
appraisal and take administrative action against him ,6 removing him as the
Bedford VA liaison to the Hans com Air Force Base Community Partnership
Committee, scheduling numerous meetings with him and abruptly canceling them
at the last minute , attempting to embarrass him in front of the Veterans Integrated
Service Network Director and other senior staff, order ing him to reassign one of
her dire ct reports rather than hold that employee accountable for his performance
because he would file an EEO complaint against her , and calling him a “moron ”
on multiple occasions in front of s taff members. IAF, Tab 1 at 24-25, Tab 6
at 4-6, 8-21, 23-31; PFR File , Tab 1 at 5-8.
¶10 Pro se filings are to be construed liberally. Farooq v. Corporation for
National and Community Service , 109 M.S.P.R. 73 , ¶ 11 (2008). T he
administrative judge correctly noted that an empl oyee is not guaranteed a
stress -free work environ ment and must act reasonably, not assume the worst, and
not jump to conclusions too quickly . ID at 5 -6; see Brown v. U.S. Postal Service ,
115 M.S.P.R. 609, ¶ 15 , aff’d , 469 F . App’x 852 (Fed. Cir. 2011) ; Miller v.
Department of Defense , 85 M.S.P.R. 310, ¶ 29 (2000) . Yet, rather than consider
the appellant’s claims of intolerable working conditions as a whole , the
administrative judge appears to have evaluated and rejected the appellant’ s claims
individually and in isolation when finding that the appellant fai led to assert
6 Ultimately, the appellant’s first -line supervisor, the Bedford VA Associate Director,
did not downgrade the appellant’s performance appraisal and rated him overall
Outstanding. IAF, Tab 7 at 37 -40. Simila rly, the record reflects that the Associate
Direc tor did not propose or effect any disciplinary or adverse action against the
appellant.
7
nonfrivolous allegations that the agency coerced his transfer . ID at 4 -6; see
Shoaf , 260 F.3d at 1342; Ferdon , 60 M.S.P.R. at 329.
¶11 We disagree with the administrative judge and find that the totality of the
appellant ’s allegations constitute s nonfrivolous allegations of intolerable working
conditions t hat entitle him to a hearing. Further, t he appellant submitted
supporting documents that describe and appear to corroborate how the Director ,
who was the highest -ranking official at t he Bedford VA , created an allegedly
hostile work environment for the appellant with day -to-day rude and unfavorable
treatment for almost a full year. IAF, Tab 6 at 23 -27, 32 -35. Moreover, t he
appellant encumbered a senior leadership position at the Bedfo rd VA with no
other positions at the facility reasonably available to him for reassignment . See
Markon v. Department of State , 71 M.S.P.R. 574, 581 -83 (1996) (remanding the
constructive removal appeal for a hearing after the appellant alleged that she had
no choice but to retire after day -to-day rude treatment for 7 months without any
other jobs available to her).
¶12 The appellant asserts that, a lthough the agency reassigned the Director
shortly after the appellant transferred to the Air Force, at the time he transferred
there was no reasonable basis to conclude that the agency would conduct an y
investigation into the Director’s actions or that the agency would reassign he r
pending such investigation. IAF, Tab 6 at 11 -12, 17. The appellant also asserts
the futility of filing a formal grievance against the Director , or that any grievance
would prompt meaningful change in his working conditions , especially when he
knew, as Chief of Human Resources, that the agency dismissed other compl aints
against the Director , which led to increased harassment . IAF, Tab 6 at 5, 11-12;
PFR File, Tab 1 at 6 -7; cf. Axsom , 110 M.S.P.R. 605, ¶ 17 (noting that a
reasonable person would not have felt compelled to resign when he had the option
to stand and f ight the alleged discrimination, harassment, and retaliation rather
than resign). We find the appellant’s assertions of the agency’s alleged ly
wrongful actions are nonconclusory, plausible, and material to the issues in this
8
appeal. See Bean , 120 M.S.P.R. 397, ¶ 8; 5 C.F.R. § 1201.4 (s). To the extent
that the agency’s submissions merely contradicted the appellant’s otherwise
sufficient nonfrivolous allegations of intolerable working conditions , IAF,
Tabs 7-8, the administrative judge should not have dismissed the appeal for lack
of jurisdiction without a he aring, see Garcia , 437 F.3d at 1344 ; Ferdon ,
60 M.S.P.R. at 329.
¶13 Accordingly, we remand this case to the regional office for a hearing on the
issue of whether the appellant’s May 29, 2016 transfer was the result of coercion
based on intolerable working co nditions and therefor e a constructive removal
within the Board’s jurisdiction. See Bean , 120 M.S.P.R. 397, ¶¶ 8, 11. If, on
remand, the administrative judge determines that the Board has jurisdiction over
this appeal as a constructive removal , then the administrative judge shall
adjudicate the appellant’s affirmative defenses and order appropriate relief. IAF,
Tab 1 at 3, 5; see Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586,
¶ 46 (2009) (noting that when the Board finds a resignation or reti rement
involuntary, the Board not only has jurisdiction over the appeal, but the appellant
wins on the merits and is entitled to reinstatement) .
ORDER
¶14 For the reasons discussed abo ve, we remand this case to the Northeastern
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 | COLPITTS_ROBERT_M_PH_0752_17_0398_I_1_REMAND_ORDER_2025953.pdf | 2023-04-27 | null | PH-0752 | NP |
3,219 | https://www.mspb.gov/decisions/nonprecedential/HOYLE_ROBERT_E_SF_844E_22_0288_I_1_FINAL_ORDER_2026009.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT E. HOYLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-844E -22-0288 -I-1
DATE: April 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah B. Kille , Esquire, Lexington, Kentucky, for the appellant.
James W. Mercier , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The Office of Personnel Man agement (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision denying the
appellant’s application for disability retirement benefits under the Federal
Employees’ Retirement System. On petition for revie w, OPM argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant failed to establish that his medical condi tions are disabling and that he
declined a reasonable offer of reassignment to a vacant position . Generally, we
grant petitions such as this one only in the following circumstances : the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is ava ilable
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review.
¶2 During the prehearing process, the appellant notified the parties that his
employing agency had issued him a notice of proposed removal for medical
inability to perform. Initial Appeal File ( IAF), Tab 19 at 5, 10 -15. The
administrative judge discussed the Bruner presumption2 with the parties but
advised them that the presumptio n did not yet attach because the appellant did not
have a final agency decision. IAF, Tab 20 at 2 -3. She noted in the initial
decision, however, that she gave significant weight to the agency’s determination
that the appellant’s medical conditions were i ncompatible with useful and
efficient service. IAF, Tab 23, Initial Decision (ID) at 17. On review, the
appellant submit s an October 14, 2022 decision letter from his employing agency
formally removing him from his position for medical inability to perfo rm, and
2 In Bruner v. Office of Personnel Management , our reviewing court found that an
employee’s removal for inability to perform the essential functions of his position
constitutes prima facie evidence that he is entitled to disability retirement. 996 F.2d
290, 294 (Fed. Cir. 1993).
3
states that this now invokes the Bruner presumption. Petition for Review (PFR)
File, Tab 3 at 7, 9-13. However, we find that subsequent application of the
presumption is unnecessary here because the parties were on notice of the Bruner
presumptio n, the administrative judge considered the appellant’s proposed
removal, and she concluded that the appellant met his statutory burden of proof
for entitlement to disability retirement, which we discern no e rror in . ID at 18;
see 5 U.S.C. § 8451 (a); 5 C.F.R. § 844.103 (a).
¶3 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶4 We ORDER OPM to grant the appellant ’s application for disability
retirement benefits. OPM must complete this action no later than 20 days after
the date of this decision.
¶5 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶6 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not full y 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
4
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202 , and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the ini tial decision on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for see king such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advis e which option is most appropriate in any matter.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
6
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information 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.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review A ct, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOYLE_ROBERT_E_SF_844E_22_0288_I_1_FINAL_ORDER_2026009.pdf | 2023-04-27 | null | SF-844E | NP |
3,220 | https://www.mspb.gov/decisions/nonprecedential/WATKINS_ERIC_AT_0752_18_0398_P_1_FINAL_ORDER_2025364.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WATKINS,
Appellant,
v.
TENNESSEE VALLEY AUT HORITY,
Agency.
DOCKET NUMBER
AT-0752 -18-0398 -P-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Watkins , Sequatchie, Tennessee, pro se.
John E. Slater , Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
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 granted, in part, the appellant’s
motion for compensatory damage and ordered the agency to pay the appellant
$20,000 in nonpecuniary damages . Generally, we grant petitions su ch as these
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition and the cross petition for
review and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On September 6, 2018, an administrative judge issued an initial decision
finding that the appellant’s retirement from the agency was involuntary and
constituted a constructive removal. Watkins v. Tennesse e Valley Authority ,
MSPB Docket No. AT -0752 -18-0398 -I-1, Initial Appeal File ( IAF), Tab 29 ,
Initial Decision (ID) at 1. He reversed the constructive removal. ID at 1, 14 .
The administrative judge also found that the appellant established a prima facie
case of disability discrimination based on the agency’s failure to accommodate
his disability by reassigning him to a vacant position for which he was qualified
and that the agency failed to present clear and convincing evidence that it would
have taken the same action abse nt the discriminatory motive. ID at 12-13. The
agency did not file a petition for review of that decision, and it became final on
October 11, 2018. ID at 16 .
¶3 On December 4, 2018, the appellant filed a request for compensatory
damages based on the administrative judge’s finding that the agency
discriminated against him on the basis of his disability when it failed to
3
accommodate him . Watkins v. Tennessee Valley Authority , MSPB Docket
No. AT-0752 -18-0398 -P-1, Damages File (P -1 DF), Tab 1. Specifically, he
argued that due to the agency’s discrimination, he suffered from depression, was
forced to refinance his house, and withdrew money from his retirement account
earlier than intended. Id. at 1. He supplemented his initial request with a formal
motion for compensatory damages, wherein he sought in excess of the
statutorily -permitted $300,000 award. P-1 DF, Tab 3 at 2. The agency did not
respond to the motion.
¶4 The administrative judge issued an initial decision on the written reco rd.
P-1 DF, Tab 8, Initial Decision ( P-1 ID). Following a discussion of the
appellant’s requests for current and future pecuniary damages as well as
nonpecuniary damages, he granted the appellant’s motion in part, ordering the
agency to pay the appellant nonpecuniary compensatory damages in the amount
of $20,000. P-1 ID at 4-9. In so doing, he denied the appellant’s request for
current and future pecuniary damages . P-1 ID at 4 -6.
¶5 The appellant has filed a petition for review arguing that the administra tive
judge erred in not awarding him more compensatory damages, both pecuniary and
nonpecuniary. Watkins v. Tennessee Valley Authority , MSPB Docket No. AT-
0752 -18-0398 -P-1, Petition for Review (PFR) File, Tab 1 at 1-2. He also argues
that he was reinstat ed into a new position in which he earns less money than other
employees but has the most seniority and that he missed out on training
opportunities for that position because he was reinstated so late . Id. He included
with his petition for review the con tact infor mation for his physician. Id. at 5.
He included with his reply to the agency’s response to his petition for review
what appears to be a receip t of his payment to a law firm. PFR File, Tab 5 at 5.
¶6 The agency has filed a cross petition for review claiming that the Board
lacks jurisdiction over the appellant’s motion for compensatory damages because
the appellant failed to make this request during the merits proceed ings. PFR File,
4
Tab 3 at 5 -6. It also responded to the appellant’s petition for review, arguing that
$20,000 is a reasonable amount. Id. at 7-9.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 Under the Civil Rights Act of 1991, an employee may recover
compensatory damages from a Federal agency that engaged in unlawful and
intentional discrimi nation against him on the basis of his disability . 42 U.S.C.
§ 1981a (a); Schultz v. U.S. Postal Service , 70 M.S.P.R. 633 , 639 (1996); 5 C.F.R.
§ 1201.202 (c). The statute authorizes the award of compensatory damages f or
pecuniary losses and for non pecuniary losses, such as, but not limited to,
emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment
of life . 42 U.S.C. § 1981a (b); Heffernan v. Department of Health and Human
Services , 107 M.S.P.R. 97 , ¶ 6 (2007). To receive an award of compensatory
damages, an appellant must demonstrate that he has been harmed as a result of the
agency’s discriminatory action and establish the extent, nature, and severity of
the harm, as well as the duration or expected duration of the harm. Id. The
Board defers to and adopts the criteria of the Equal Employmen t Opportunity
Commission for proving both the entitlement to and the amount of compensatory
damages. Id., ¶ 5 ; Sloan v. U.S. Postal Service , 77 M.S.P.R. 58 , 70 (1997).
The Board has jurisdiction to consider the appellant’s motion for compensatory
damages.
¶8 As an in itial matter, we address the agency’s argument in its cross petition
for review that the administrative judge was without jurisdiction to decide the
appellant’s motion for compensatory damages because the appellant failed to
raise his damages claim during the merits st age of these proceedings. PFR File,
Tab 3 at 5-6. The agency did not raise this argument below. The Board generally
will not consider an argument raised for the first time on review absent a showing
that it is based on new and material evid ence not previously available despite the
party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
5
(1980 ). The agency has n ot explained why it could not have made this argument
below, and we will not consider the merits of it further.
¶9 However, to the extent a determination of jurisdiction impacts our ability to
decide this appeal, see 5 C.F.R. § 1201.3(a), we address that here. See Ney v.
Department of Commerce , 115 M.S.P.R. 204 , ¶ 7 (2010) (holding that the issue of
the Board’s jurisdiction is always before the Board and may be raised sua s ponte
by the Board at any time). The agency appears to conflate jurisdiction with the
Board’s procedures for awarding compensatory damages. PF R File, Tab 3 at 5 -6.
The Board’s regulations recognize the statutory authority to award compensatory
damages separate and apart from its procedural and subst antive requirements.
Compare 5 C.F.R. § 1201.202 (c) (providing for awards of compensatory dama ges
as authorized by 42 U.S.C. § 1981a ) with 5 C.F.R. § 1201.204 (addressing the
procedure for seeking compensatory damages). The agency’s argument goes to
the appellant’s failure to comply with the procedural requirements ; it does not
concern our well -established jurisdiction to decide the appellant’s moti on for
compensatory damages . See Heffernan , 107 M.S.P.R. 97 , ¶ 5. Accordin gly, we
deny the agency’s cross petition for review.
The administrative judge correctly found that the appellant failed to offer
sufficient evidence to establish his entitlement to pe cuniary dama ges.
¶10 Pecuniary damages are available for out -of-pocket expenses shown to be
related to the discriminatory conduct. Edwards v. Department of Transportation ,
117 M.S.P.R. 222 , ¶ 12 (2012 ). These damages include reimbursement for
medical, job hun ting, and moving expenses. Id. Claimants generally must
document these expenses, typically with receipts, bills, or physicians’ statements.
Id. Past pecuniary losses are ones that occur before a complaint is resolved and
future pecuniary losses are losses likely to occur after a complaint is resolved.
Id.
¶11 Below , the appellant argued that he was entitled to past pecuniary dama ges
because he had to refinance his home , withdraw money from his retirement
6
account earlier than expected, and pay for medicals bills regarding the treatment
of his depression. P-1 DF, Tab 1 at 1 . The administrative judge found that the
appellant offered no evidence to do cument these expenses or establish the amount
of losses. P-1 ID at 5. He further found that, even if the appellant had
established the amount in question, he failed to establish the extent, severity, and
duration or expected duration of such harm . Id. On review, the appellant has not
challenged the administrative judge’s findings on these points, nor has he
submitted any documentary evidence esta blishing the costs of these expenses.
PFR File, Tabs 1, 5 . Accordingly, we will not disturb the initial dec ision in this
regard.
¶12 In addi tion to the past pecuniary dama ges, the appellant also sought future
pecuniary damages, asserting that he should receive damages if the agency
attempted to restore him to a position “at a lower pay scale than that of a system
operator.” P-1 DF, Tab 1 at 1 . The administrative judge found that the appellant
neither alleged nor established that the agency had restored him to such a position
and therefore failed to establish that he was entitled t o an award of compensatory
dama ges on the basis of futu re pecuniary losses. P-1 ID at 5-6. On review, the
appellant argues that he could not establish his future pecuniary losses “because
they just brought [him] back to work ” in April of 2019. PFR File, Tab 1 at 1. He
also asserts t hat he earns less money in his new position yet has the most
seniority, and that the position to which he was reinstated caused him to miss out
on several bonuses. Id. He claims that his requests to the agency for accurate
records regarding pay and bonus es in his new position have been ignored. Id.
¶13 The appellan t’s assertions are unavailing. He has not presented any
evidence beyond his unsworn statements in his petition for review to support an
award of pecuniary damages based on his reinstatement . PF R File, Tabs 1, 5.
Further, even if the appellant had established that he was not properly restored as
ordered in the final decision on the merits, IAF, Tab 29 at 14, his claim is a
compliance issue and not a question of compensatory damages , see 5 C.F.R.
7
§ 1201.182 . Accordingly, we agree with the administrative judge that the
appellant failed to establish that he is entitled to any pecuniary damages.
The administrative judge’s award of $20,000 in nonpecuniary damages is an
appropriate amount , which we will not disturb .
¶14 As discussed above, nonpecuniary damages include emotion pain, suffering,
inconvenience, mental anguish, and loss of enjoyment of life. Edwards ,
117 M.S.P.R. 222 , ¶21 . An award of compensatory damages for nonpecuniary
losses should reflect the extent to which the agency directly or proximately
caused the harm and the extent to which other factors also caused the harm. Id.
Acceptable evidence of nonpecuniary damages may include a statement by the
appellant explaining how he was affected by the discrimination. Id., ¶ 22.
Statements from others, including family members, friends, and health care
providers may address the outward manifestations of the impact of the
discrimination on the appellant. Id. The appellant may also submit
documentation of medical or psychiatric treatment related to the effects of the
discrimination, although such evidence is not a mandatory prerequisite to
establishing entitlement to nonpecuniary damages. Id. The amount of a
nonpecuniary damage awar d should not be “monstrously excessive” standing
alone, should not be the product of passion or prejudice, and should be consistent
with the amount awarded in similar cases. Id., ¶ 21.
¶15 The appellant sought nonpecuniary damages fo r emotional pain and
suffering, inconvenience, mental anguish , and loss of enjoyment of life. P-1 DF,
Tab 1 at 1, Tab 3 at 2 . He asserted that he experienced these nonpecuniary losses
“as a result of an ongoing pattern of retaliation ” for equal employmen t
opportunity activity to which he was subjected by the agency. P-1 DF, Tab 3
at 2. He also claimed that he and his wife suffered “undue stress” resulting from
him being out of work , that he had been attending therapy sessions for stress and
anxiety, and that he had been prescribed several different medications. P-1 DF,
8
Tab 1 at 1, Tab 6 at 3. He requested damages “in excess of the jurisdictional
limit of $300,000.” P-1 DF, Tab 3 at 2.
¶16 The administrative judge found that, while the record is not entir ely clear
regarding the extent to which the appellant’s nonpecuniary losses are strictly
attributable to the agency’s failure to reasonably accommodate him, the stress
that the appellant suffered as a result of having to adjust to the uncertain ties of
his work status and loss of income resulting from his retirement constitute
compensable nonpecuniary damages. P-1 ID at 8. After considering the
appellant’s statement s and comparable cases, he concluded that the appellant was
entitled to an award of $20 ,000 in nonpecuniary damages. Id.
¶17 On re view, the appellant reiterates his claim that the emotional stress he
experienced warranted nonpecuniary damages in excess of the statutory limit of
$300,000. PFR File, Tab 1 at 2. He also asserts that he has been working to get a
copy of his medical records reflecting his depression. Id. These arguments do
not provide a basis to disturb the initial decision. Although the appellant claims
that he is working on getting his medical records, the current record i ncludes only
the appellant’s unsworn statements and contact information for a Department of
Veterans Affairs clinic . P-1 DF, Tabs 1, 3, 6; PFR File, Tabs 1, 5 .
¶18 Given the limited record evidence , we agree with the administrative judge’s
award of $20,000 . He appropriately considered the record evidence and
comparable cases and awarded an amount that is not “monstrously excessive.”
P-1 ID at 8 -9; see Edwards , 117 M.S.P.R. 222 , ¶ 21. The appellant’s petition for
review offers no new argument or evidence; he essentially restates his argument s
from below, demonstrating mere disagreement with the administrative judge’s
findings and well -reasoned conclusions. Accordingly, it does not provide a basis
to disturb the initial decision.2 See Crosby v. U.S. Postal Service , 74 M.S.P.R.
2 The appellant’s petition for review includes a request for a hearing on the question of
nonpecuniary damages. PFR File, Tab 1 at 2 -3. We deny that request. The appellant is
not necessarily entitled to a hearing o n the issue of compensatory damages, and he did
9
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 reached well -reasoned conclusions); 5 C.F.R. § 1201.115 (a)-(d).
An award of compensatory damages does not include back pay or other related
relief.
¶19 The appellant argue d below and reasserts on review that the agency failed
to provide him the correct amount of back pay, interest on back pay, and sick and
annual leave . P-1 DF, Tab 6 at 3; PFR File, Tab 1 at 1 -2, Tab 5 at 1 -3. He argues
that he was unable to provide the a dministrative judge and the Board with the
exact amount he believes the agency owed him because it has not responded to
his requests to produce that information. PFR File, Tab 1 at 1 -3. Although the
initial decision in the underlying matter awarded back pay and related relief, IAF,
Tab 29 at 14, t he appropriate avenue to pursue an allegation that the agency has
failed to provide proper relief is through a compliance proceeding .3 The instant
case is limited to a motion for compensatory damag es, and the statute does not
authorize an award of back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII as a component to a compensatory
not request a hearing below. P-1 ID at 1. Further, t he Board ’s regulations at the
petition for review stage do not entitle the appellant to a hearing. 5 C.F.R. § 1201.117 .
3 The appellant filed a petition for enforcement asserting that the agency was in
noncompliance with the Board’s final order in the underlying matter. Watkins v.
Tennessee Valley Authority , MSPB Docket No. AT-0752 -18-0398 -C-1, Compliance File
(CF), Tab 1. The administrative judge issued an initial decision in that matter, noting
that the agency failed to reply to the appellant’s allegations in accordance with his
order, and finding that it failed to prove t hat it complied with the final decision or that
it had good cause for noncompliance or for inc omplete or partial compliance. CF,
Tab 4, Compliance Initial Decision (CID) at 2-3. Neither party petitioned for review of
the compliance initial decision, whic h became final on March 14, 2019 . CID at 6. The
matter has been referred to the Board’s Office of General Counsel to obtain the
agency’s compliance. See Watkins v. Tennessee Valley Authority , MSPB Docket
No. AT-0752 -18-0398 -X-1.
10
damages reward.4 42 U.S.C. § 1981a (b)(2) (stating that compensatory damages
shall not include back pay, interest on back pay, or any other type of relief
authorized by the Civil Rights Act of 1964); see Heffernan , 107 M.S.P.R. 97 , ¶ 6 .
¶20 We have considered the parties’ arguments in the petition and cross pet ition
for review but have determined that there is no basis to disturb the initial
decision . Ac cordingly, we deny both the petition and cross petition for review
and affirm the initial decision.
ORDER
¶21 We concur with the administrative judge’s decision to grant the appellant’s
motion for compensatory damages and award him $20,000 in nonpecuniary
damages. The agency is ORDERED to issue a check to the appellant in this
amount. The agency must complete this action no later than 20 days after the
date on which this Order is issued.
¶22 We further ORDER the agency to tell the app ellant 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 O rder. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶23 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 t he 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
4 The appellant’s reply to the agency’s respons e to his petition for review appears to
indicate that he paid $2,095 to his attorneys and includes a receipt of payment for
another $595 . PFR File, Tab 5 at 1, 5. To the extent the appellant is request ing an
award of attorney fees related to prior Board proceedings in his motion for
compensatory damages, we deny that request. See Boots v. U.S. Postal Service ,
105 M.S.P.R. 500 , 502 n.2 (2007) (stating that compensatory damages do not include
fees incurred for representation). Pursuant to the Board’s regulations, the appellant
may file a motion for attorney fees , 5 C.F.R. § 1201.203 , but we make no finding here
regarding t he timeliness of such a motion.
11
fully carried out the Board ’s Order, an d should include the dates and results of
any communications with the agency. 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 forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
5 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.
12
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a genera l rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision . 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for t he Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by an y attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
13
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appro priate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Prote ction 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 f ile with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitl ed to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices d escribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for th e Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protectio n Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at thei r
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATKINS_ERIC_AT_0752_18_0398_P_1_FINAL_ORDER_2025364.pdf | 2023-04-26 | null | AT-0752 | NP |
3,221 | https://www.mspb.gov/decisions/nonprecedential/WATKINS_ERIC_AT_0752_18_0398_X_1_FINAL_ORDER_2025393.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WATKINS,
Appellant,
v.
TENNESSEE VALLEY AUT HORITY,
Agency.
DOCKET NUMBER
AT-0752 -18-0398 -X-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Watkins , Sequatchie, Tennessee, pro se.
John E. Slater , Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 In a February 7, 2019 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s final decision in the
underlying adverse action appeal and granted the appellant’s petition for
enforcement. Watkins v. Tennessee Valley Authority , MSPB Docket No. AT -
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
0752 -18-0398 -C-1, Compliance File (CF), Tab 4, Compliance Initial Decision
(CID) ; Watkins v. Tennessee Valley Authority , MSPB Docket No. AT -0752-18-
0398 -I-1, Initial Appeal File, Tab 29, Initial Decision (ID) .2 For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDEN CE ON COMPLIANCE
¶2 In the February 7, 2019 compliance initial decision, the administrative
judge found that the agency failed to establish that it had complied with the
Board’s decision in the underlying appeal, which reversed the appel lant’s
constructive removal and ordered him reinstated with back pay and benefits. CID
at 3. Accordingly, the administrative judge granted the appellant’s petition for
enforcement and ordered the agency to: (1) determine the position to which the
appell ant was entitled to be reassigned in accordance with the instructions
contained in the Board’s final decision in the underlying appeal and reassign him
to that position, retroactive to April 12, 2018; and (2) calculate and pay the
appellant the appropriate amount of back pay with interest. CID at 4.
¶3 On February 14, 2019, the agency submitted to the Board a statement and
evidence of compliance pursuant to 5 C.F.R. § 1201.183 (a)(6)(i). Watkins v.
Tennessee Valley Authority , MSPB Docket No. AT -0752 -18-0398 -X-1,
Compliance Referral File (CRF), Tab 1. Therein, the agency stated that it would
reinstate the appellant, retroactively to April 12, 2018, to a Systems Operations
Initial Training Program Specialist (Dispatcher) position within the next 10 days.
CRF, Tab 2 at 5. The agency explained that “Appellant will be placed in a
non-work, pay status —with full pay and benefits —until the start of the training
class, at which time he would be i n a work status, with pay and benefits.” Id.
2 The September 6, 2018 initial decision became the final decision of the Board in the
underlyi ng appeal on October 11 , 2018, after neither party filed an administrative
petition for review. ID at 16.
3
The agency also stated that it would pay the appellant back pay for the period
from April 12, 2018, through January 6, 2019, and attached a spreadsheet
reflecting its calculations that he would be entitled to $63,825 in back pay and
152 hours of restored annual leave for the period from April 16, 2018, through
January 6, 2019. Id. at 5, 8. However, the agency stated, the appellant had to
submit an affidavit or declaration regarding any earnings and disability retirement
payments he received during the back pay period before it could finalize its back
pay calculations and pay him. Id. at 5. The agency stated that it would process
payment of t he back pay award within 10 business days of receiving the requested
information. Id. at 6.
¶4 On February 15, 2019, the Board issued an acknowledgement order
informing the appellant that he had the opportunity to respond to any submission
filed by the agency and that, if he did not respond to the agency’s evidence of
compli ance, the Board might assume he was satisfied and dismiss his petition for
enforcement. CRF, Tab 2.
¶5 On March 8, 2019, the appellant notified the Board that he had not been
placed in pay status and had not received any back pay. CRF, Tab 3 at 1.
¶6 On April 29, 2019, the Board issued an order directing the agency to submit
a narrative statement and evidence showing that it had fully complied with the
Board’s final decision by retroactively reinstating the appellant and paying him
back pay with interest. CRF, Tab 4 at 2. The Board also directed the agency to
address the appellant’s allegations of noncompliance. Id. The Board again
informed the appellant that he could reply to the agency’s response and that, if he
did not respond, the Board might assume he w as satisfied and dismiss his petition
for enforcement. Id.
¶7 In a March 10, 2020 submission, the agency stated that it had placed the
appellant in the Dispatcher position retroactive to April 12, 2018 —initially in a
non-work, pay status until he was placed in the position to begin performing
duties. CRF, Tab 5 at 4. The agency also stated that it paid the appellant back
4
pay in the amount of $63,825 covering the period from April 12, 2018, to
January 6, 2019 , and restored all lea ve and other benefits to him . Id. at 4-5. The
appellant did not respond to the agency’s March 10, 2020 submission.
ANALYSIS
¶8 When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the si tuation 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 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 Here, the agency has informed the Board that it has reinstated the appellant
to the Dispatcher position retroactive to April 12, 2018; paid him back pay in the
amount of $63,825; and restored his leave and other benefits. CRF, Tab 5 at 4 -5.
As evidence of its compliance, the agency provided only a spreadsheet containing
its back pay calculations, which reflects that it determined the appellant was
entitled to $63,825 in back pay and 152 hours of restored annual leave for the
period from April 16, 2018, through January 6, 2019. Id. at 13. Although the
agency has not provided any evidence showing that it has reinstated the appellant
or paid him interest on the back pay award, the appellant has not responded to 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 suf ficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
agency’s latest compliance submission, despite being notified of his opportunity
to do so and of the consequences of not responding. Accordingly, we assume 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 agency’s evidence of compliance and the lack of a response
from the appellant, 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 HTS4
You may obtain r eview of this final decision . 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of ava ilable appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall wit hin their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
7
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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
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 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 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 judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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.
9
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.
Contact information for th e courts of appeals can be 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 | WATKINS_ERIC_AT_0752_18_0398_X_1_FINAL_ORDER_2025393.pdf | 2023-04-26 | null | AT-0752 | NP |
3,222 | https://www.mspb.gov/decisions/nonprecedential/WRIGHT_PAUL_O_DA_0353_15_0517_B_1_FINAL_ORDER_2025419.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAUL O. WRIGHT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0353 -15-0517 -B-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul O. Wright , Houston, Texas, pro se.
Nadalynn F. Hamilton , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective ac tion as to his partial recovery restoration claim
and dismissed his full recovery restoration claim for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous find ings 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 administr ative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was formerly employed by the agency as an Electronic
Technician until he retired, effective September 30, 2004. Wright v. U.S. Postal
Service , MSPB Docket No. DA-0353 -15-0517 -I-1, Initial Appeal File (IAF),
Tab 5 at 4, 7, 12, Tab 7 at 57. In July 2015, he filed a Board appeal alleging that
the agency denied him restoration. IAF, Tab 1. The administrative judge issued
an initial decision that dismissed the appeal, finding that the appellant failed to
nonfrivolously allege that he was separated as a result of a compensable injury.
IAF, Tab 12 , Initial Decision .
¶3 The appellant filed a petition for review, which the Board granted. Wright
v. U.S. P ostal Service , MSPB Docket No. DA -0353 -15-0517 -B-1, Remand Order,
(May 17, 2016 ). The Bo ard found that the appellant had nonfrivolously alleged
that he was separated as a result of a compensable injury because : (1) the record
reflected that , on June 14, 2004, he had suffered a recurr ence of a work -related
injury ; (2) from June 15 , 2004, until when the appellant retired on September 30,
2004, his employment status was leave without pay, injured on duty ; and (3) the
3
appellant alleged that he subsequently retired after the agency informed him that
there was no available work within his medical restrictions, sent him home , and
failed to assist him in obtaining Office of Workers’ Compensation (OWCP)
benefits . Id., ¶ 15. The Board found that the record appeare d consistent with
these contentions because , among other things, in 2014 , OWCP awarded the
appellant retroactive wage loss benefits for the period from June 15 -24, 2004 .
Id., ¶ 16. The Board further found that the appellant raised nonfrivolous
allegation s regarding the remaining jurisdiction al requirements of his partial
recovery restoration claim and remanded the appeal for further adjudication.2 Id.,
¶¶ 18-19. Finally, the Board found that the appellant alleged that the agency
denied him restoration f ollowing his full recovery and remanded the case to allow
the parties an oppor tunity to develop the record regarding this claim. Id.,
¶ 20 n.10.
¶4 On remand, the administrative judge issued an initial decision denying the
appellant’s request for corrective action as to his partial restoration claim and
dismissing his full recovery restoration claim for lack of jurisdiction. Wright v.
U.S. Postal Service , MSPB Docket No. DA -0353 -15-0517 -B-1, Remand File,
Tab 37, Remand Initial Decision (RID).3 Regarding the appellant’s partial
restoration claim, the administrative judge found that the appellant failed to prove
by preponderant evidence that his September 30, 2004 retirement was a result of a
compensable injury because he failed to show that OWCP determined h e suffered
from a compensable injury beyond June 24, 2004. RID at 2 -4. Regarding the
appellant’s full restoration claim, the administrative judge found that the
appellant failed to nonfri volously allege that he requested restoration withi n
2 Because this appeal was filed in July 2015, after the effective date of the Board’s
revised r egulation, 5 C.F.R. § 1201.57 , the appellant was only required to make
nonfrivolous allegations of jur isdiction to obtain a hearing, at which he was required to
prove the merits of his appeal by preponderant evidence.
3 The initial decision was based on the wri tten record because the appellant withdrew
his request for a hearing. RID at 2 n.1.
4
30 days after O WCP terminated compensation payments. RID at 5 -6. In
particular, the administrative judge found that the record reflected that OWCP
had closed the appellant’s right trigger finger claim , with all benefits paid, on
October 1, 2011, and closed his left tri gger finger claim , with all benefits paid, on
September 2, 2014. RID at 6. Although the appellant did not present any
evidence that OWCP had closed his claims on the basis that he was fully
recovered, the administrative judge found that, even assuming th at that was the
case, the appellant failed to nonfrivolously allege that he requested restoration
within 30 days of October 1, 2011, or September 2, 2014.4 Id.
¶5 The appellant has filed a petition for review. Wright v. U.S. Postal Service ,
MSPB Docket No. DA-0353 -15-0517 -B-1, Remand Petition for Review ( RPFR)
File, Tab 1. The agency has opposed the appellant’s petition. RPFR File, Tab 4.
The appellant has filed a reply. RPFR File, Tabs 5 -6.
¶6 With his petition for review, the appellant submits numerous do cuments.
RPFR File, Tab 1 at 4 -17, Tab s 2, 5 -6. He contends that he found these
documents in storage and , thus, they were not available prior to the close of the
record b elow. RPFR File, Tab 1 at 2, Tab 2 at 1. We find that these documents
do not provi de a basis to disturb the initial decision because they are neither new
nor material. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 ( 1980)
(stating that the Board will not consider evidence 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 ); 5 C.F.R.
§ 1201.115 (d).
4 The administrative judge also found that the appellant failed to nonfrivolously allege
that he requested restoration within 30 days of December 8, 2015, the date he cont ended
that he was fully recovered. RID at 6.
5
¶7 Here, t he evidence is not new because the documents predate the close of
record below and/or are part of the record below.5 See Meier v. Department of
the Interior , 3 M.S.P.R. 247 , 256 (1980) (explaining that evidence that is already
a part of the record is not new) ; 5 C.F.R. § 1201.115 (d) (stating that to constitute
new and material evidence, the information contained in the documents, not just
the documents themselves, must have been un available despite the appellant’ s due
diligence when the record closed ). Even if this evidence were new, it is not
material because the appellant has not explained why he believes that it warrants
an outcome different from that of the initial decision. See Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980).
¶8 On review, the appellant does not identify any specific error that the
administrative judge made in evaluating t he evidence or applying the law . See
Baney v. Department of Justice , 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v.
Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992). Neverthele ss, we have
reviewed the record and discern no error in the administrative judge’s analysis.
Although he contends generally that t he administrative judge failed to consider
the restoration regulations set forth in 5 C.F.R. part 353, RPFR File, Tab 1 at 1-2,
we find that the administrative judge properly applied the restoration regulati ons
to the fac ts of this appeal, RID at 2, 5 . Th e appellant also contends that the
administrative judge failed to consider the Board’s decisions in Latham v. U.S.
Postal Service , 117 M.S.P.R. 400 (2012) , overruled by Cronin v. U.S. Postal
Service , 2022 MSPB 13 , and Chen v. U.S. Postal Service , 97 M.S.P.R. 527
(2004) , overruled in part by Latham , 117 M.S.P.R. 400 , ¶ 10 . However, h e has
not explained how either of these decisions establish es any error in the initial
decision.
5 Several documents are undated and do not appear to be part of the record below.
RPFR File, Tab 1 at 6, 10 -11, 16 -17. We decline to consider such documents because
the appellant has not shown that the inform ation contained in them was unavailable
prior to the close of the record below despite his due diligence or explained why he was
unable to obtain the documents from storage before the record close d below.
6
¶9 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS6
You may o btain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for y our situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 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.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their r espective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Emp loyment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Oper ations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, th en you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employm ent Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Oppo rtunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing d isclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, an d your judicial petition for review “raises no challenge 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 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 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.
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 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.
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 | WRIGHT_PAUL_O_DA_0353_15_0517_B_1_FINAL_ORDER_2025419.pdf | 2023-04-26 | null | DA-0353 | NP |
3,223 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_CHARLES_L_CH_0831_17_0237_I_1_FINAL_ORDER_2025444.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES L. WILLIAMS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
ROSETTA WILLIAMS -SCOTT ,
Intervenor .
DOCKET NUMBER
CH-0831 -17-0237 -I-1
DATE: April 26, 2023
THIS ORDER IS NONPRECEDEN TIAL1
Charles L. Williams , East Saint Louis, Illinois, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
Kevin J. Kubitschek , Belleville, Illinois, for the intervenor.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
1 A nonprecedential order is one t hat the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them i n any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
vacated a reconsideration decision of the Office of Personnel Management (OPM)
concerning the appellant’s former spouse’s entitlement to a share of his
retirement annuity and remand ed the appeal to OPM to issue a new
reconsideration decision. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erron eous 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 u nder section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision.
¶2 On petition for review, the appellant argues that he did not receive the
agency’s file until May 1, 2017 , and asserts t hat the administrative judge erred in
prematurely closing the record . Petition for Review (PFR) File, Tab 1 at 3 .2
However, t he appellant has not explained how he was prejudiced by the
administrative judge’s Close of Record O rder, which affor ded him unti l June 5,
2 The appellant also submits various documents with his petition for review. PFR File,
Tab 1 at 6 -21. However, such evidence is not relevant to the issue of whether the
administrative judge properly remanded the appeal to OPM. T herefore, it provides no
basis to disturb the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 ,
349 (1980) (holding that the Boar d will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
3
2017 , to file evidence and argument in his case . Initial Appeal File , Tab 12 at 2.
The appellant also contends that the administrative judge “gold plated the pro rate
[sic] share” and “rendered it to the agency by way of a series of bias errors. ” PFR
File, Tab 1 at 2. He also makes various arguments concerning the merits of his
appeal and OPM’s alleged improper computation of his former spouse’s share of
his retirement annuity. Id. at 3-5. Such arguments , however, fail to establish any
error in the initial decision because t he administrative judge did not make any
findings regarding whether OPM correctly awarded and computed the
apportionme nt of the appellant’s retirement annuity to his former spouse. Rather,
the administrative judge found th at the Board could not consider the merits of the
appeal because OPM had failed to address the appellant’s arguments raised in his
request for reconsideration or explain the obvious inconsistencies between OPM’s
initial and reconsideration decisions concer ning the correct amount of the
appellant’s former spouse’s share of his retirement annuity. Thus, the
administrative judge properly remanded the case to OPM for issuance of a new
reconsideration decision because OPM previously had not addressed all issues
necessary for adjudication of the appeal.3 See, e.g. , Litzenberger v. Office of
Personnel Management , 88 M.S.P.R. 419 , ¶¶ 9 -10 (2001); Stubblefield v. Office
of Personnel Management , 60 M.S.P.R. 455 , 460 (1994).
ORDER
¶3 On remand, OPM is hereby ORDERED to take the following actions:
(1) explain how the Judgment of Dissolution of Marriage meets the requirements
of a court order acceptable for processing and whether the lack of a Qualified
Domestic Relations Order renders the court order unacceptable; (2) determi ne
3 On April 12 , 2019, May 24, 2019, August 29, 202 0, March 30, 2021, May 10, 2021,
and December 22, 2021, the appellant filed motion s to submit additional pleading s in
which, although unclear, he appears to raise arguments concerning the merits of the
appeal. PFR File, Tabs 9, 12, 23 , 27, 30, 34. We deny such motion s in light of ou r
decision, which does not reach the merits but rather remand s the appeal to OPM.
4
how much of the appellant’s total Federal and militar y service is creditable for
purposes of computing his annuity; (3) if an y of the a ppellant’s service is not
creditable, determine what effect, if any, this has on OPM’s computation of the
intervenor’s pro rata share of the appellant’s gross annuity; (4) compute the pro
rata share of the appellant’s annuity to which the intervenor is entitled, and
determine whether the intervenor’s share has changed throughout the course of
the appellant’s retirement; a nd (5) apply the pro rata shares to which the
intervenor was entitled to the gross annuity payments the appellant has received
since his retirement to determine whether the intervenor and/or the appellant have
been overpaid or underpaid; (6) t o the extent necessary, adjust the amounts
payable to the intervenor and the appellant to ensure that they receive the
amount s to which they are entitled; (7 ) take appropriate action as to any
overpayments or underpayments resulting from the determinations and
computat ions set forth above; and (8) issue a new final decision within 90 days
that addresses the matters set forth above and advises both the intervenor and the
appellant of their Board appeal rights .
¶4 We also ORDER OPM to tell the appellant and the intervenor pr omptly in
writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the intervenor 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).
¶5 No later than 30 days after OPM tells the appellant and the interv enor it has
fully carried out the Board’s Order, the appellant or the int ervenor may file a
petition for enforcement with the office that issued the initial decision on this
appeal if the appellant or the intervenor believes that OPM did not ful ly carry out
the Board’s Order. The petition should contain specific reasons why the
appellant or the intervenor believes that OPM has not fully carried out the
5
Board’s Order, and should include the dates and results o f any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_CHARLES_L_CH_0831_17_0237_I_1_FINAL_ORDER_2025444.pdf | 2023-04-26 | null | CH-0831 | NP |
3,224 | https://www.mspb.gov/decisions/nonprecedential/NICHOLS_LEON_B_PH_831M_15_0519_I_1_FINAL_ORDER_2025458.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEON B. NICHOLS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-831M -15-0519 -I-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leon B. Nichols , Sharon, Pennsylvania, pro se.
Kristine Prentice , 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 affirming
the reconsideration decision of the Office of Personnel Management (OPM) ,
finding the existence of an overpayment , denying the appellant’s re quest for a
waiver, and modifying the appellant’s repayment schedule .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are 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
¶2 On petition for review, the appellant does not challenge the administrative
judge’s findings that OPM proved the existence and amount of the overpayment
and properly denied his request for a waiver . Initial Appeal File, Tab 15, Initial
Decision at 4‑7. I nstead, he claims that his financial circumstances further
deteriorated after the issuance of the initial decision. Petition for Review ( PFR )
File, Tab 1 at 3, Tab 5 at 3. Specifically, he presents argument and evidence on
review that the Social Security Administration ( SSA ) began deducting $134 for
monthly Medicare Part B insurance premiums from his benefits, reducing them to
$1,313; that the state benefits he and his wife receive for their dependent children
were reduced to $ 981.80 ; and that he owes $37 .70 per month for a newly
instituted Medicare Part D premium, which apparently was not being withheld
from his SSA benefits. PFR Fil e, Tab 7 at 4 -8, Tab 8 at 3-4. Additionally, the
appellant argues that “[i]t actually IS important that [he and his wife] are BOTH
enrolled in school.” PFR File, Tab 7 at 5. We construe these arguments as a
request for a further adjustment of the repayment schedule based on changed
circumstances and a challenge to the administrative judge’s disallowance of the
appellant’s s tudent loan debt and college expenses. See Malone v. Office of
Personnel Management , 113 M.S.P.R. 104, ¶ 5 (2010) (construing th e pro se
appellant’s claims on petition for review concerning her recently increased rental
expenses as a request for an adjustment in the re payment schedule); see generally
Jordan v. Office of Personnel Management , 108 M.S.P.R. 119, ¶ 19 (2008)
(explaining that the Board construes pro se pleadings liberally).
¶3 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new an d material
3
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for revie w and AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
¶4 We find that the appellant’s argument and evidence are insufficient to
warrant furthe r adjustment of his repayment schedule based on financial hardship.
See generally Malone , 113 M.S.P.R. 104, ¶ 4 (explaining that a financial hardship
exists when the debto r needs substantially all of her current income and liquid
assets to meet current ordinary and necessary living expenses ).2
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 b elow do not represent a
statement of how courts will rule regarding which cases fall within their
2 The appellant is notified that OPM has advised the Board that it may seek reco very
from an annuitant’s estate or other responsible party of any debt remaining upon his or
her death . A party responsible for any debt remaining upon an annuitant’s death may
include an heir (spouse, child or other) who derives a benefit from the annuit ant’s
Federal benefits, an heir or other person acting as the representative of his or her estate
if, for example, the representative fails to pay the United States before paying the
claims of other creditors in accordance with 31 U.S.C. § 3713 (b), or transferees or
distributers of the appellant’s estate. Pierotti v. Office of Personnel Management ,
124 M.S.P.R. 103 , ¶ 13 (2016).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the no tice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
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 Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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
5
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.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 whi stleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR T HE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | NICHOLS_LEON_B_PH_831M_15_0519_I_1_FINAL_ORDER_2025458.pdf | 2023-04-26 | null | PH-831M | NP |
3,225 | https://www.mspb.gov/decisions/nonprecedential/MAYFIELD_ANTHONY_W_DE_1221_13_0320_W_1_REMAND_ORDER_2025498.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY W. MAYFIELD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -13-0320 -W-1
DATE: April 26, 2023
THIS ORDER IS NONPRECEDENTIAL1
Anthony W. Mayfield , Santa Fe, New Mexico, pro se.
Zulema Hinojos -Fall, Esquire, and Kathleen A. Catanach ,
Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal . For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 , VA CATE the initial decision, and REMAND the case to the field office
for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 During the time period relevant to this appeal, the appellant served as a
Dentist at an agency medical facility in Albuquerque, New Mexico . Initial
Appeal File (IAF), Tab 7 at 10, 89. In October 2012, the appellant’s supervisor
notified him of deficiencies in his clinical competency and placed him on a
90-day performance improvement plan (P IP). Id. at 20 -22. After completing the
PIP period, the appellant received a February 4, 2013 annual proficiency report
rating his overall proficiency as “unsatisfactory.” Id. at 63-64. On March 5,
2013, the appellant notified the agency that he would resign in 30 days because
he could “no longer work in an environment that has become hostile, unsafe and
punitive.” Id. at 18. The agency effected the a ppellant’s resignation on April 4,
2013. Id. at 89.
¶3 The appellant filed complaints with the Office of Special Counsel (OSC)
alleging that the agency had retaliated against him for disclosures regarding
wasteful spending and inadequate patient care by giving him the unsatisfactory
annual proficiency report and by creating an unpleasant working environmen t that
forced him to resign. IAF, Tab 2 at 5. OSC made a preliminary determination to
close its inquiry into the appellant’s complaint, finding that it did not appear that
his resignation was coerced and that, because he had resigned, there was no
correc tive action available pertaining to the unsatisfactory annual proficiency
report. Id. On April 17, 2013, OSC closed its investigation into the appellant’s
complaint and notified him of his right to seek corrective action from the Board.
Id. at 2-4.
¶4 The appellant subsequently filed this IRA appeal , alleging that, in
retaliation for his protected disclosures , his supervisor gave him an unsatisfactory
annual proficiency report and created intolerable working conditions that
3
compelled him to resign from hi s position. IAF, Tab 1 , Tab 12 at 1 . In an order
and summary of a telephonic status conference, the administrative judge found
that the appellant established jurisdiction over his IRA appeal by showing that he
had exhausted his administrative remedies wi th OSC and by nonfrivolously
alleging that he made at least one protected disclosure that was a contributing
factor in the agency’s creation of an environment that would have compelled a
reasonable person to resign . IAF, Tab 12 at 1-2. In a subsequent or der, the
administrative judge informed the parties that the appellant’s annual proficiency
report could not be challenged as a stand -alone personnel action but that it could
be considered as part of the “overall environment ” in determining whether the
agen cy coerced his resignation. IAF, Tab 24 at 2 n.2.
¶5 After holding the requested hearing,2 the administrative judge issued an
initial decision finding that the appellant failed to show by preponderant evidence
that his resignation was involuntary and, theref ore, concluded that the appellant
could not establish that the agency took a covered personne l action against him.
IAF, Tab 38, Initial Decision (ID) at 6-11. Because the appellant did not prove
that the agency subjected him to a covered personnel action , the administrative
judge denied his request for corrective action. ID at 12.
¶6 The appellant filed a petition for review of the initial decision . Petition for
Review (PFR) File, Tab 1.3 On review, the appellant reiterates his argument from
below that th e PIP and resulting proficiency report were flawed and unfair and
argues, among other things, that two relevant witnesses did not testify at the
2 The administrative judge originally scheduled the hearing to be conducted by video
conference . IAF, Tab 21 at 1. However, due to technical difficulties, the hearing was
conducted telephonically. IAF, Tab 28, Hearing Compact Disc (HCD) ; IAF, Tab 38,
Initial Decisio n at 2 n.1. The appellant did not object to proceeding with the
telephonic , inste ad of the video, hearing. HCD.
3 The appellant subsequently filed a motion asking the Board to accept an addendum
containing two minor corrections to his petition for review. PFR File, Tab 3. We grant
the appellant’s motion and accept his addendum into the record on review.
4
hearing and that he was unable to address some evidence at the hearing .4 Id. The
agency has not responded to the appellant’s petition for review.
¶7 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA) ,5
the Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (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 protected disclosure or activity was a co ntributing factor
in the agency’ s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5
(2016 ). Once an appellant establishes jurisdiction over his IRA appeal, he is
entitled to a hearing on the merits of his claim, which he must prove by
preponderant evidence. Id. If the appellant proves that his protected disclosure
was a contributing factor in a personnel action taken against him, the agency is
given an opportunity to prove, by clear and convincing evidence, that it would
4 On review, t he appellant also challenges the adequacy of the telephonic hearing,
asserting that he had to participate from the agency counsel’s “back office,” that the
“harsh conditions limited the accuracy of the audio recording and concealed any visual
evidence,” and that the administrative judge was unable to see the body language of a
witne ss. PFR File, Tab 1 at 4. When an appellant has a right to an in -person hearing,
the administrative judge has no authority to order a telephonic hearing over the
appellant’s objection. Abakan v. Department of Transportation , 98 M.S.P.R. 662 , ¶ 4
n.* (2005). However, because the appellant did not object below to conducting the
hearing telephonically, he failed to preserve this issu e for review. See id. ; HCD .
Although the appellant did preserve his objection to participating in the telephonic
hearing from agency counsel’s office, HCD, he has not shown that the administrative
judge erred in approving the hearing location or that his participation from that office
had an adverse effect on his substantive rights , PFR File, Tab 1 . Therefore, any such
error is of no legal consequence. See Karapinka v. Department of Energy , 6 M.S.P.R.
124, 127 (1981 ) (stating that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive rights).
5 The alleged reta liatory actions at issue here took place after the December 27, 2012
effective date of the WPEA, Pub. L. No. 112 -199, 126 Stat. 1465 . We have reviewed
the relevant legislation enacted during the pendency of this appeal and have concluded
that it does not affect the outcome of the appeal.
5
have taken the same personnel action in the absence of the protected disclosure.
5 U.S.C. § 1221 (e)(1) -(2); Salerno , 123 M.S.P.R. 230 , ¶ 5.
¶8 Here, as noted above, the administrative judge found jur isdiction over this
IRA appeal, but considered only whether the appellant’s alleged involuntary
resignation constituted a covered personnel action and did not consider the
appellant’s unsatisfactory annual proficiency report as a stand -alone personnel
action. IAF, Tab 24 at 2 n.2; ID. However, “a performance evaluation under
chapter 43 of [title V] or under title 38 ” is a personnel action under the WPEA.
5 U.S.C. § 2302 (a)(2)(A)(viii) . The administrative judge did not explain, and it is
not apparent on review, why the appellant’s annual proficiency report rating his
performance during the rating period as unsatisfactory did not constitute a
personnel action under section 2302(a)(2)(A)(vi ii). Under similar circumstances,
the Board has found that an “unfavorable proficiency report” constituted a
potentially retaliatory personnel action . Colbert v. Department of Veterans
Affairs , 121 M.S.P.R. 67 7, ¶ 12 (2014). Therefore, we find it appropriate to
remand this claim for further adjudication . On remand, the administrative judge
shall afford the appellant notice an d an opportunity to establish his prima facie
case of whistleblower reprisal in connection with the annual proficiency report .
If requested by the appellant , the administrative judge shall hold a supplemental
hearing.
¶9 In light of our finding regarding t he annual proficiency report, we vacate
the administrative jud ge’s analysis of the involuntary resignation claim and also
remand this claim for further adjudication .6 See id. , ¶ 13; Diefenderfer v.
6 The Board has found that the creation of a hostile work environment may constitute a
personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii) to the extent that it r epresents a
significant change in duties, responsibilities, or working conditions. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17 , ¶ 16. To meet this standard, an
agency’s actions must, individually or collectively, have practical and significa nt
effects on the overall nature and quality of an employee’s working conditions, duties, or
responsibilities. Id. In determining whether a hostile work environment is present, the
6
Department of Transportation , 108 M.S.P.R. 651 , ¶ 37 (2008) (explaining that,
because the Board was remanding the appeal for further conside ration of some o f
the appellant’ s reprisal claims, and because these claims were intertwined with
her claim that her resignation was involuntary, further consideration of the latter
claim was appropriate). Therefore, the a dministrative judge shall reconsider his
findings concerning the involuntary resignation claim in light of any further
evidence and argument introduced on remand and shall make new fi ndings
concerning the appellant’ s claim in this regard.7 See Colbert , 121 M.S.P.R. 677 ,
¶ 12; Diefenderfer , 108 M.S.P.R. 651 , ¶ 37.
¶10 Because this matter is being remanded on other grounds, we need not
address the appellant’s contentions on review regarding witnesses and evidence
excluded from, or unavailable at, the hearing. PFR File, Tab 1 at 2. On remand,
the appellant will have the opportunity to submit relevant evidence in support of
his claim , and the adm inistrative judge will weigh that evidence accordingly. See
5 C.F.R. § 1201.41 (b). Furthermore , the appellant will have the opportunity to
call relevant witnesses to the supplemental hearing , which the administrative
judge will rule on at that time. See id.
Board will consider the totality of the circumstances, including agency a ctions that may
not individually rise to the level of a personnel action. Id., ¶ 18.
7 If the administrative judge finds no evidence of reprisal in connection with the
appellant’s unsatisfactory annual proficiency report, he may, if appropriate, adopt his
prior findings regarding the appellant’s alleged involuntary resignation.
7
ORDER
For the reasons discussed above, we vacate the initial deci sion and remand
this case to the field 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 | MAYFIELD_ANTHONY_W_DE_1221_13_0320_W_1_REMAND_ORDER_2025498.pdf | 2023-04-26 | null | DE-1221 | NP |
3,226 | https://www.mspb.gov/decisions/nonprecedential/YOMI_FRANCIS_SF_0752_16_0764_I_1_FINAL_ORDER_2025512.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FRANCIS YOMI,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0764 -I-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Francis Yomi , Frederick, Maryland, pro se.
Matthew Dan Rajnus , Bremerton , Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction . On petition for review, the appellant
argues that the agency failed to comply with the regulatory requirements for
probationary ter minations . 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 initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may ob tain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to you r claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a gener al rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decisio n. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevanc e is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by a ny attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 decision.
If you sub mit 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 comm ercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represen tation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YOMI_FRANCIS_SF_0752_16_0764_I_1_FINAL_ORDER_2025512.pdf | 2023-04-26 | null | SF-0752 | NP |
3,227 | https://www.mspb.gov/decisions/nonprecedential/FAUSNAUGH_RODNEY_AT_844E_20_0707_I_1_FINAL_ORDER_2025517.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RODNEY FAUSNAUGH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -20-0707 -I-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert R. McGill , Esquire, Walkersville, Maryland, for the appellant.
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 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 The agency has filed a petition for review of the initial decision, which
reversed the reconsideration decision of the Office of Personnel Management
(OPM) that denied the appellant’s application for disability retirement benefits.
Generally, we grant pet itions 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 t o the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the pet ition for review and AFFIRM the initial decision ,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b) .
BACKGROUND
¶2 The appellant is a veteran of the United States Marine Corps. Initial Appeal
File (IAF), Tab 1 at 13. He began working for t he Department of Veterans
Affairs as a Police Officer in 2008 and was diagnosed with post -traumatic stress
disorder (PTSD) in 2009 or 2010. Id.; Hearing Recording (HR) at 22:50 -23:45
(testimony of the appellant) . In 2016, while assigned to The Villages Outpatient
Clinic, the appellant was involved in an active shooter incident , he subdued and
arrested a veteran who fired an AR -15 and was threatening patients and providers,
and this incident exacerbated his PTSD . HR at 2 :10-4:50, 12:00 -12:15 (testimony
of the appellant) ; IAF, Tab 1 at 14, Tab 6 at 18-19. In May 2018, the appellant
3
was reassigned to the Physical Security Assistant position. IAF, Tab 1 at 21; HR
at 27:30 -28:00 (testimony of the appellant) .
¶3 In July 2019, wh ile employed in the Physical Security Assistant position,
the appellant requested to take leave pursuant to the Family and Medical Leave
Act of 1993 (FMLA). IAF, Tab 1 at 17 -20. In support of his request, he
submitted documentation signed by his psycholo gist, stating that he had been
diagnosed with chronic PTSD, with such prominent symptoms as “intrusive
memories of trauma,” “prolonged psychological distress at exposure to reminders
of traumatic events,” “irritable mood,” “hypervigilance,” “concentration
problems,” and “significant impairment in functioning, generally.” IAF, Tab 6
at 18-19. The appellant’s psychologist concluded that the appellant was unable to
be “physically present at the hospital due to perceived danger.” Id.
¶4 In September 2019, the appellant was reassigned to the position of Program
Support Assistant. IAF, Tab 6 at 12, 18 -19, 67; HR at 5:30 -7:10 (testimony of
the appellant). The appellant reported to the position for 1 day and then
requested leave without pay (LWOP). HR at 12:30 -13:10 , 48:40 -48:50
(testimony of the appellant) . He submitted a retirement application in October
2019. IAF, Tab 1 at 57 -60.
¶5 OPM issued an initial decision denying the appellant’s application for
disability retirement. IAF, Tab 6 at 11 -15. The appellant requested
reconsideration and OPM issued a decision upholding its denial. Id. at 5 -8.
Thereafter, in June 2020, the appellant returned to the Program Support Assistant
position. HR at 8:00, 48:00 -49:00 (testimony of the appellant) . Since his return
to the position, the appellant testified that he suffers two or three panic attacks
per day, lasting 30 minutes to 2 hours each, that he is unable to concentrate on his
job duties because of perceived threats in and around the building, and that he
suffers f rom dissociative episodes that cause him to lose focus while driving,
ending up hours from his home. Id.; IAF, Tab 1 at 11 -12.
4
¶6 In July 2020, the appellant appealed OPM’s reconsideration decision to the
Board. IAF, Tab 1. After conducting a telephonic hearing, the administrative
judge reversed OPM’s reconsideration decision and ordered it to accept the
appellant’s application for disability retirement benefits. IAF, Tab 12, Initial
Decision (ID). OPM has filed a petition for review, and the appellant has filed a
response. Petition for Review (PFR) File, Tabs 1, 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 To be eligible for disability retirement under the Federal Employees’
Retirement System (FERS), the appellant must prove by preponderant evidence
that (1) h e completed at least 18 months of creditable civilian service, (2) while
employed in a position subject to FERS, he became disabled because of a medical
condition, resulting in a deficiency in performance, conduct or attendance, or, if
there is no such def iciency, the disabling medical condition is incompatible with
either useful and efficient service or retention in the position, (3) the disabling
medical condition is expected to continue for at least 1 year from the date that the
application for disabilit y retirement benefits was filed, (4) accommodation of the
disabling medical condition in the position held must be unreasonable, and (5) he
did not decline a reasonable offer of reassignment to a vacant position. 5 U.S.C.
§ 8451 (a); Thorne v. Office of Personnel Management , 105 M.S.P.R. 171 , ¶ 5
(2007).
¶8 OPM concedes that the appellant has completed at least 18 months of
creditable service (element (1)). PFR File, Tab 1 at 5. OPM’s petition for review
asserts that the administrative judge erred in finding the appellant met his burden
as to elements (2) and (3) because he did not prove by preponderant evidence that
he had a medical condition that rendered him unable to perform useful and
efficient service and that was expected to last 1 year after from the date his
disability retirement application was filed. Id. at 5-9. OPM also contends that
the administrative judge erred in considering the appellant’s deficiencies in his
5
previous positions and that the appellant was precluded from receiving disability
retirement because he had accepted a reassignment from his prior two posi tions.
Id. at 9-10.
We affirm the administrative judge’s finding that the appellant proved that while
employed in a position subject to FERS, he became disabled because of a medical
condition that rendered him unable to provide useful and efficient servi ce.
¶9 The administrative judge found that the appellant proved that while in a
position subject to FERS, he became disabled because of a medical condition,
resulting in an inability to provide useful and efficient service. ID at 10. In
pertinent part, she found that his testimony regarding his PTSD symptoms was
undisputed and he provided competent medical evidence to support his testimony.
Id. OPM first asserts in its petition for review that the appellant did not provide
sufficient objective medical evid ence to substantiate his diagnosis. PFR File,
Tab 1 at 6 -9.
¶10 The Board has stated that it will consider all pertinent evidence in
determining an appellant’s entitlement to disability retirement benefits, including
objective clinical findings, diagnoses a nd medical opinions, subjective evidence
of pain and disability, and evidence relating to the effect of the appellant’s
condition on his ability to perform the duties of his position. Henderson v. Office
of Personnel Management , 117 M.S.P.R. 313 , ¶ 19 (2012). The lack of objective
medical evidence cannot be used as the sole basis for denying an applicant
disability retiremen t benefits. See Vanieken -Ryals v. Office of Personnel
Management , 508 F.3d 1034 , 1039 -44 (Fed. Cir. 2007). Subjective evidence
regarding the appellant’s symptoms “may be ent itled to great weight,” especially
where such evidence is uncontradicted in the record. Chavez v. Office of
Personnel Management , 6 M.S.P.R. 404 , 422 (1981). It is within the discretion
of the administrative judge to make determinations as to the materiality of the
evidence and to weigh the probative value of such evidence. Whitmer v. Office of
Personnel Management , 48 M.S.P.R. 312 , 317 (1991).
6
¶11 Here, the appellant testified extensively about the symptoms of his PTSD
and submitted documents from two medical providers, his psycho logist and a
Licensed Clinical Social Worker, to substantiate his diagnosis. IAF, Tab 1
at 13-20, Tab 6 at 43, 52 -56; HR (testimony of the appellant). The appellant’s
psychologist, who saw him over an 8 -year period, until 2019, wrote that the
appellant w as diagnosed with PTSD in 2010 and the diagnosis was confirmed in
2011 following administration of the Personality Assessment Inventory. IAF,
Tab 1 at 13 -16. In July 2019, the appellant’s psychologist completed a form in
support of the appellant’s FMLA l eave request, which stated that the appellant is
diagnosed with chronic PTSD. Id. at 17 -20. The appellant also submitted a
five-page assessment/diagnostic evaluation completed by his Licensed Clinical
Social Worker, which noted diagnoses of chronic PTSD and Major Depressive
Disorder. IAF, Tab 6 at 52 -56.
¶12 OPM’s petition for review asserts that the psychologist’s evaluation should
be given low probative value because it was “unauthored, unsigned, undated and
missing pages.” PFR File, Tab 1 at 8 -9 (citing IAF, Tab 6 at 49 -51). There is an
incomplete version of the document in the agency file; however, the appellant
attached to his initial appeal a complete version of the evaluation, which included
the psychologist’s signature, his PhD status, his title, a s well as a thorough and
lengthy evaluation.3 IAF, Tab 1 at 13 -16.
¶13 OPM also contends that the FMLA form completed by the psychologist
“must be deemed incompetent” because the appellant did not include the records
3 Though the document was undated, it included a summa ry of a July 2019 session and
it was submitted to OPM with the appellant’s disability retirement application in
October 2019, so it is reasonable to conclude that the document was authored during
that timeframe. Because we can ascertain the approximate da te the document was
drafted, we do not find the lack of an exact date decreases its probative value.
7
from the underlying 59 sessions.4 PFR F ile, Tab 1 at 8 (citing Christopherson v.
Office of Personnel Management , 119 M.S.P.R. 635 (2013)). We disagree with
OPM’s reading of Christopherson and find that it does not create an affirmative
obligation for the appellant to provide all underlying medical documentation in
order for a medical opinion or record to be deemed competent. In
Christopherson , 119 M.S.P.R. 635, ¶ 10, there appeared to be no medical reports
in the record concerning the appellant’s medical conditions; instead, there were
only documents that referenced medical reports concerning such medical
conditions. The Board in Christopherson found that OPM rebutted the
presumption of disability by showing a lack of medical evidence explaining how
the appellant was unable to perform her specific work requirements, prevented
her from being regular in attendance, caused her to act inappropriately or,
alternatively, that her medical conditions were inconsistent with work in general,
in a particular line or work, or in a particular type o f work setting. Id. Here,
however, the appellant provided medical reports from two separate providers that
described his PTSD diagnosis, detailed the significant impact of the 2016 active
shooter incident on his PTSD, and supported his burden for proving his
entitlement to disability retirement benefits . Accordingly, we find no error in the
administrative judge’s consideration of the medical evidence.
¶14 In challenging the administrative judge’s conclusion that the appellant
proved that he was unable to r ender useful and efficient service in his position,
OPM contends that the administrative judge erred in considering the appellant’s
performance deficiencies in his prior positions instead of considering the
appellant’s performance in his final position of record, Program Support
Assistant. PFR File, Tab 1 at 10.
4 Similarly, OPM contends that the social worker’s five-page single -spaced letter should
be rejected because it did not include underlying notes. PFR File , Tab 1 at 8.
However, for the reasons stated herein, this argument is not persuasive.
8
¶15 We agree with OPM’s underlying proposition, i.e., that th e relevant position
for determining the appellant’s qualification for disability retirement benefits is
the last position he held before fi ling his application. Ballenger v. Office of
Personnel Management , 101 M.S.P.R. 138 , ¶ 7 (2006). While we acknowledge
that the administrative judge discussed the appellant’s performance deficiencies
in the Police Officer and Physical Security Assistant positions, she did so to give
context to the history and progression of the appellant’s PTSD. ID at 6 -8.
Having thoroughly analyzed the evidence, she concluded that his testimony
regarding his PTSD symptoms was undisputed and supported by competent
medical evidence. ID at 10. She appropriately found that the appellant was
unable to provide useful a nd efficient service in his particular work environment
based on his testimony regarding the symptoms he experienced while employed in
the Program Support Assistant position, his final position of record. ID at 8 -10.
In pertinent part, she noted that he testified that he is hypervigilant at work, gets
startled easily, has difficulty dealing with uncooperative callers, has trouble
sleeping, and does not feel safe in the facility, which she found was consistent
with the assessments of the psychologist and L icensed Clinical Social Worker.
Id.
¶16 Accordingly, we find no error in the administrative judge’s conclusion that
the appellant proved that he is unable to render useful and efficient service in his
particular work environment. See Craig v. Office of Perso nnel Management ,
92 M.S.P.R. 449 , ¶ 13 (2002) (finding that the appellant’s medical condition,
including PTSD, wa s incompatible with useful and efficient service in her Unit
Secretary position and retention in that position because she testified that her
PTSD symptoms were exacerbat ed in the penitentiary setting and her mental
health professional confirmed that the a ppellant’s condition was “extr emely
environmentally sensitive ”).
9
We affirm the administrative judge’s finding that the appellant proved that his
disabling medical condition is expected to last 1 year from the date of his
application for disability retire ment benefits.
¶17 The administrative judge found that the appellant proved that his disabling
medical condition is expected to last 1 year or more from the date of his
application for disability retirement benefits largely because his condition has
spanned multiple years. ID at 10. We have considered and rejected OPM’s
arguments that the medical evidence was not competent, supra ¶¶ 9-13.
Moreover, the record reflects that the appellant has suffered from PTSD for a
decade, the 2016 incident led to further deterioration and impaired functioning,
and the appellant’s psychologist, who treated him for 8 years, stated that the
anticipated duration of the appellant’s condition was “probably lifetime.” IAF,
Tab 1 at 13 -20. We therefore affirm the administrative judge’s finding in this
regard.
We affirm the administrative judge’s finding that accommodation of the
appellant’s PTSD would be unreasonable and that he did not decline an offer of
reassignment to a vacant position.
¶18 The administrative judge found the ap pellant proved that accommodation of
his PTSD would be unreasonable and he did not decline an offer of reassignment
to a vacant position (elements (4) and (5)). ID at 10 -11. OPM does not appear to
challenge the administrative judge’s findings as to these elements.5 Moreover, we
discern no error with the administrative judge’s analysis or conclusion.
¶19 Based on the foregoing, we deny the petition for review and affirm the
administrative judge’s decision to order OPM to grant the appellant’s disability
retirement application.
5 To the extent that OPM argues that the appellant’s acceptance of the two earlier
reassignments precludes his receipt of disability retirement, PFR File, Tab 1 at 10, we
are not persuaded by this argument.
10
ORDER
¶20 We ORDER OPM to grant the appellant’s application for disability
retireme nt. OPM must complete this action no later than 20 days after the date of
this decision.
¶21 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out t he 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).
¶22 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not ful ly carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.20 2, 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 in itial decision on your appeal.
11
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 se eking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 mos t appropriate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at t he court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Feder al Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition o f your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your r epresentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion , sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
13
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
14
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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 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.
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FAUSNAUGH_RODNEY_AT_844E_20_0707_I_1_FINAL_ORDER_2025517.pdf | 2023-04-26 | null | AT-844E | NP |
3,228 | https://www.mspb.gov/decisions/nonprecedential/ALSTON_ELLA_M_PH_0845_17_0257_I_1_FINAL_ORDER_2025520.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ELLA M. ALSTON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0845 -17-0257 -I-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ella M. Alston , Baltimore, Maryland, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely filed . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requi red to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation o r 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 resu lting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On April 26, 2017, the appellant filed an appeal challeng ing the March 22,
2016 reconsideration decision of the Office of Personnel Management (OPM) ,
which found that s he had received an overpayment and set a repayment schedule.
Initial Appeal File (IAF), Tabs 1, 8 at 6. That letter also included the appellant’s
right to appeal OPM’s decision to the Board a nd set forth the deadline of 30 days.
IAF, Tab 8 at 10. In her initial decision, t he administrative judge found that the
appellant stated that she received OPM’s decision on April 5, 2016, and thus, she
was required to file her appeal to the Board by May 5, 2016. IAF, Tab 12, Initial
Decision (ID) at 2. The appellant did not file her appeal until April 26, 2017,
one year and three weeks late. IAF, Tab 1. The appellant’s response to an order
to show good cause for her untimely filing related solely to the merits of her
appeal, and it did not address the timeliness. IAF, Tab 10. Accordingly, the
administrative judge dismissed her appeal as untimely filed without a showing of
good cause. ID at 4.
3
¶3 The appellant has filed a petition for review . Petiti on for Review (PFR)
File, Tabs 3, 5.2 The agency has filed a response to the petition. PFR File, Tab 8.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board’s regulations provide that an appeal must be filed no later than
30 days after the effective date, if any, of the action being appealed, or 30 days
after receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22 (b).
The regulations further provide that, if a party does not su bmit an appeal within
the applicable time limit, it will be dismissed as untimely filed unless a good
reason for the delay i s shown. Cranston v. U.S. Postal Service , 106 M.S.P.R.
290, ¶ 8 (2007) ; 5 C.F.R. § 1201.22 (c). To establish good cause for an untimely
appeal, a party must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force , 4 M.S.P.R. 1 80, 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of h er excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evi dence of the existence of
circumstances beyo nd her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly sh ows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶5 Here, the administrative j udge found that the appellant received OPM’s
reconsideration decision on April 5, 2016, and that she filed her appeal on
April 27, 2017, one year and three weeks late. ID at 3; IAF, Tab 1 at Box 24.
2 A question exists as to whether the appellant’s petition for review also was timely
filed. PFR File, Tab 6; see 5 C.F.R. § 1201.114 (e) (requiring that a petition for review
generally must be filed within 35 days after the date of the issuance of the initial
decision). However, because we have denied the petition because it does not meet the
Board’s criteria for review , we do n ot reach that timeliness issue.
4
The administrative judge further found that, even thoug h the appellant was
ordered to provide a basis for her untimely filing, the appellant failed to do so.
ID at 3. Thus, the administrative judge dismissed the appeal as untimely filed.
ID at 4.
¶6 On review, the appellant does not challenge the administrat ive judge’s
findings regarding the timeliness of her appeal.3 PFR File, Tab s 5, 9. Rather, she
asserts that she is pro se and she appears to generally argue that timeliness issues
concerning her appeal were caused by computer problems that resulted in her
having no access to the Board’s e -filing system since June 24, 2017, and that she
has “been ‘unaware’ of any deadlines or schedules pertaining” to her appeal. PFR
File, Tab 5 at 1 -2. However, the deadline for filing an appeal to the Boar d was
May 5, 2016. Because the appellant was required to file her appeal more than a
year prior to any computer issues she claims she had, and because she failed to
provide any basis below for the untimely filing of her appeal , we find that she has
not es tablished good cause for waiving the filing deadline on this basis.
¶7 The appellant also asserts that her appeal was untimely because she became
the caregiver to various members of her family and that her own health has
suffered as a result . Id. at 1. She has attached a letter from h er physician dated
September 1, 2017, stating that the appellant has suffered “tremendous increase in
the amount of difficulty in her personal life” over the past 24 months due to her
family members ’ health issues; that she ma y have suffered “some degree of
cognitive impairment” due to her own medical conditions, which causes frequent
and severe migraines; that she also has suffered from depression and difficulty
3 The appellant also challenges the merits of the underlying overpayment decision, and
she contends that OPM did not take her financial situation into consideration . To the
extent the appellant may now be requesting an adjustment of her repayment schedule
due to changes in her financial situation, any such request should be addressed to OPM,
as provided by section V(F) (5) of OPM’s Guidelines on the Disposition of
Overp ayments under the Civil Service Retirement System and the Federal Employees’
Retirement System. See Martin v. Office of Personnel Management , 49 M.S.P.R. 134 ,
137 (1991), aff’d , 960 F.2d 156 (Fed. Cir. 1992) (Table).
5
sleeping; and that she has difficulty fully understanding the leg al issues. Id. at 9.
She also has submit ted several medical records for her family members . PFR
File, Tab 5 at 7 -8, Tab 9 at 7 -10.
¶8 The Board will find good cause to waive its filing time limits whe n a party
shows that she suffered from an illness that affected her ability to file on time.
See Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 19 (2016). To
establish that an untimely filing was the result of an illness, the party must do the
following : (1) identify the time period during which she suffered from the
illness; (2) submit medical or other corroborating evid ence showing that she
suffered from the alleged illness during that time period; and (3) explain how the
illness prevented her from timely filing her appeal or requesting an extension of
time. Id. The party need not prove incapacitation during the filing period. Id.
She need only prove that her ability to file with the Board was “affected” or
“impaired” by illness. Id.
¶9 Here, even though the appellant’s medical evidence show s that she was
being treated by her doctor for frequent and severe migraines and depression, it
does not indicate how her condition prevented her from timely filing her appeal
or requesting an extension of time during the entire period of untimeliness . See
Braxton v. Department of the Treasury , 119 M.S.P.R. 157 , ¶¶ 8-9 (2013). We
also cannot determine whether the appellant exercised due diligence in filing this
appeal after she first became aware of her right t o do so because the record does
not establish the date when she first became aware of that right. Id., ¶ 9. Further,
her claim of assisting various family members during their illnesses also is
insufficient to justify a delay as it does not specifically account for the entire
period of untimeliness. Pine v. Department of the Army , 63 M.S.P.R. 381, 383
(1994).
¶10 To the extent t he appellant asserts that she is unable to afford an attorney ,
her inability to retain and/or afford an attorney does not establish good cause for
the delay . PFR File, Tab 1 ; see Hawkins v. Department of the Navy , 67 M.S.P.R.
6
559, 562 (1995) . Further more , even though the appellant is acting pro se, that
fact alone cannot overcome her filing delay and the absence of showing due
diligence. See De La Cruz E span v. Office of Personnel Management ,
95 M.S.P.R. 403 , ¶¶ 6-7 (2004). Accordingly, we find no basis to disturb the
administrative judge ’s determination to dismiss this appeal as untimely filed
without a showing of good cause.
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 followi ng summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding whi ch cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicabl e time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particul ar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
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 court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
8
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any 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 repre sentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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 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 competent jurisdiction expired on
December 27, 2017. Th e All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | ALSTON_ELLA_M_PH_0845_17_0257_I_1_FINAL_ORDER_2025520.pdf | 2023-04-26 | null | PH-0845 | NP |
3,229 | https://www.mspb.gov/decisions/nonprecedential/YEUNG_SUSAN_AT_0752_19_0654_I_1_FINAL_ORDER_2025544.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN YEUNG,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -19-0654 -I-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan Yeung , Debary, Florida, pro se.
Katie A. Chillemi , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
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 reduction -in-pay appeal for lack of jurisdiction . For the reasons
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 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
discussed below, we GRANT the app ellant’s petition for review, REVERSE the
initial decision, and REVERSE the appellant’s reduction in pay.
BACKGROUD
¶2 The appella nt was a GS -13, step 2 Program A nalyst for the National
Aeronautics and Space Administration’s Kennedy Space Center, with a salary of
$90,598. Initial Appeal File (IAF), Tab 4 at 51. The appellant applied for a
GS-11 Auditor position with the Department of Homeland Security, t he
respondent agency in this appeal. Id. at 40, 47. The full promotion potential for
the position was GS -13. Id. at 47. The agency selected the appellant off of a
certificate, and on April 30, 2018, it extended her a tentative job offer at GS -11,
step 10. Id. at 39. The appellant accepted, and on July 8, 2018, she transferred to
the GS -11, step 10 Auditor position, with a salary of $79,586. Id. at 35 -38.
Effective January 9, 2019, the appellant’s salary was adjusted upwards to
$80,912, pursuant to g overnment -wide salary increases under Executive Order
No. 13,866, 84 Fed. Reg. 12853 (Mar. 28, 2019). Id. at 31.
¶3 As the appellant approached 52 weeks in her Auditor position , and under
5 C.F.R. § 300.604 (a) became eligible for a career ladder advancement to GS -12,
the agency began reviewing her file to determine what the appropriate step would
be upon promotion. Id. at 29. The agency then determined that it had erred in
transferring the appellant in as a GS -11, step 10 and should instead have
transferred her in as a GS -11, s tep 9. Id. The agency reasoned that transferring
the appellant in at step 10 had been contrary to its Policy Pay Setting Guidance,
which provides that, when an e mployee is transferred to a position at a lower
grade, her pay must be set so that her pay upon promotion will not exceed her pay
prior to the transfer. Id. at 16, 25, 58. Specifically, the agency determined that,
under 5 U.S.C. § 5334 (b), the appellant’s advancement to GS -12 would be at
step 6, and her expected advancement to GS -13 the following year would have to
be at step 3, which would exceed her rate of pay prior to transfer. Id. at 10. Th e
3
agency therefore retroactively adjusted the appellant’s pay to reflect that she had
entered on duty as a GS -11, step 9, at $77,545 per year, and it notified her that
she had been overpaid $1,041.14 in salary, which the agency intended to collect
through deductions to her pay. IAF, Tab 1 at 7 -15. The appellant filed a Board
appeal and requested a hearing, challenging the r eduction in pay. IAF, Tab 1
at 2-3, 5.
¶4 The administrative judge issued an acknowledgment order, notifying the
parties that the appell ant had made a prima facie showing of Board jurisdiction
under 5 U.S.C. chapter 75 by establishing that her basic pay had been reduced.
IAF, Tab 2 at 2. She ordered the agency to respond to the acknowledgment order
with evidence and argument showing that the reduction in pay constituted the
correction of a pay-setting error. Id. After the agency responded, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction without a hearing. IAF, Tab 5, Initial Decision (ID). She agreed
with the agency that the appellant’s career ladder advanceme nt to GS -13 from a
baseline of GS -11, step 10 would place her at G S-13, step 3, in violation of
5 C.F.R. § 532.405 , and accordingly , the agency had erred in transferring the
appellant in at the step 10 level. ID at 3 -4.
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s application of the law. Petition for Review (PFR) File, Tab 1. The
agency has filed a response to the petition, and the appellant has fi led a reply to
the agency’s response. PFR File, Tabs 3 -4. During the pendency of the petition
for review, the Office of the Clerk of the Board issued a show cause order,
notifying the agency that its Policy Pay Setting Guidance may not have the force
and effect of law such that the correction of a pay-setting error in violation of that
guidance would be excluded from the Board’s jurisdiction. PFR File, Tab 5. The
order informed the agency of the applicable standard and directed it to file
evidence and a rgument on the issue. Id. The agency re sponded. PFR File,
Tab 6.
4
ANALYSIS
¶6 The Board has jurisdiction to review an appeal of a reduction in grade or
pay. 5 U.S.C. § § 7512 , 7513(d) . The general rule is that a reduction in an
employee’s rate of basic pay is appealable to the Board. See 5 U.S.C.
§§ 7511 (a)(4), 7512(4), 7513(d). However, there is an exception to this rule for
cases in whic h an agency reduces an employee’s basic pay “from a rate that is
contrary to law or regulation.” 5 C.F.R. § 752.401 (b)(15). Such an action is not
appealable to the Board. 5 C.F.R. § 752.401 (b)(15) ; see Hall v. Department of
the Navy , 73 M.S.P.R. 251, 254 (1997); Warren v. Department of Transportation ,
19 M.S.P.R. 560 , 565 (1984).
¶7 When an agency contends that it reduced an employee’s pay to correct what
it believes was an error in setting pay, then the agency bears the burden of
showing that it set the employee’s pay at a rate contrary to law or regulation.
Lomax v. Department of Defense , 78 M.S.P.R. 553 , 559 -60 (1998). The Board
has held that an employee should not be forced to prove that the agency did not
make an error in setting her pay because the agency is in a much better position to
know why it originally set the employee’s pay as it did and what later led it to
conclude that it made an error. Vega v. U.S. Postal Service , 108 M.S.P.R. 221 ,
¶ 11 (2008).
¶8 As noted above, the alleged pay-setting error in this case was detected when
the agency projected the appellant’s expected career ladder advancement to the
full promotion potential of her position. The agency made its projection in
accordance with the two -step promotion rule of 5 U.S.C. § 5334 (b). That
subsection provides in relevant part as follows:
An employee who is promoted or transferred to a position in a higher
grade is entitled to basic pay at the lowest rate of the higher grade
which exceeds his existing rate of basic pay by not less than two
step-increases of the grade from which he is promoted or transferred.
5 U.S.C. § 5334 (b). We agree with the agency, and the appellant does not
dispute, that under this rule the appellant’s career ladder advancement would have
5
been from GS -11, step 10 to GS -12, step 5 and th en to GS -13, step 3. IAF, Tab 4
at 11 -12, 52. We also agree with the agency, and the appellant does not dispute,
that the appellant’s rate of pay at GS-13, step 3 would exceed her rate of pay
prior to transfer from her former GS-13, step 2 position . Id. at 11, 5 1-52, 58.
Therefore, based on this projected career ladder advancement, the appellant’s
transfer in at GS -11, step 10 was contrary to the agency’s Policy Pay Setting
Guidance, which provides in relevant part as follows:
[P]ay for conversions or t ransfers to positions at a lower grade will
be set at a step of the lower grade which, upon re -promotion, will not
place the employee in a rate exceeding that previously held in the
higher grade.
Id. at 58.
¶9 The agency argued below that the applicable provi sion of its Policy Pay
Setting Guidance was intended to ensure compliance with 5 C.F.R.
§ 532.405 (a)(1), which provides that, when an employee is transferred, “the
agency may fix the pay at any rate of the new grade which does not exceed the
employee’s highest previous rate.” IAF, Tab 4 at 5, 9. However, we agree with
the appellant that 5 C.F.R. § 532.405 (a)(1) does not apply to her because she is
not a prevailing rate employee. PFR File, Tab 1 at 4 -5; see 5 U.S.C.
§ 5342 (a)(2); 5 C.F.R. §§ 532.101 , .103. Moreover, even if 5 C.F.R.
§ 532.405 (a)(1) did apply to the appellant, we find that it would not have
prevented the agency from fixing her pay at GS -11, step 10. That regulation
pertains to fixing the rate of pay “when an employee is reemployed, reassigned,
transferred, promoted, or changed to a lower grade .” 5 C.F.R. § 532.405 (a)(1). It
says no thing about an employee’s pay upon repromotion.
¶10 The agency also argues that its Policy Pay Setting Guidance was intended to
ensure compliance with the maximum payable rate rule of 5 C.F.R .
§ 531.221 (a)(1) -(2). PFR File, Tab 6 at 5. This section provides a method “to
determine an employee’s payable rate of basic pay under the GS pay system at a
rate higher than the otherwise applicable rate upon reemployment, transfer,
6
reassignment, promo tion, demotion, [or] change in type of appointment . . . .”
5 C.F.R. § 531.221 (a)(1). Again, this section says nothing about an employee’s
pay upon repromotion.
¶11 In response to the Board ’s show cause order, the agency states that it is not
contending that its Policy Pay Setting Guidance in and of itself is entitled to the
force and effect of law. PFR File, Tab 6 at 4. Rather, the “Pay Setting Guidance
pertaining to conversion or transfe r to a lower grade is a direct application of
existing F ederal regulations and codes contained in 5 C.F.R. § 531 , Subpart B,
5 C.F.R. § 532 , Subpart D and 5 U.S.C. § 5334 .” Id. However, as explained
above, this is not accurate. To the extent that these provisions of law even apply
to the appellant, they do nothing to limit her rate of pay upon transfer based on
her expected future repromotion. These limits are found only with in the agency’s
Policy Pay Setting Guidance, which the agency has not shown to have the force
and effect of law under Hamlet v. United State s, 63 F.3d 1097 , 1105 (Fed. Cir.
1995). Because the agency concedes that its Policy Pay Setting Guidance is not a
“law or regulation” within the meaning of 5 C.F.R. § 752.401 (b)(15), we find that
it has failed to meet its burden to show that it reduced the appellant’s pay from a
rate contrary to law or regulation. Accordingly, we find that the action under
appeal does not fall under 5 C.F.R. § 752.401 (b)(15) and that it is a “reduction in
pay” within the Board’s chapter 75 jurisdiction. See Vega , 108 M. S.P.R. 221 ,
¶ 18; see also 5 U.S.C . §§ 7512 (4), 7513(d).
¶12 It is undisputed that the agency reduced the appellant’s pa y without
affording her prior notice and an opportunity to respond as required by 5 U.S.C.
§ 7513 (b) and the Due Process Clause of the Fifth Amendment to the
Constitution . IAF, Tab 4 at 26. Therefore, the agency violated the appellant’s
right to due process, and the appellant’s reduction in pay must be reversed. See
Simmons v. Department of Housing and Urban Development , 120 M.S.P.R. 489,
¶ 8 (2014); Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 680 -81
(1991).
7
ORDER
¶13 We ORDER the agency to cancel the appellant’s reduction in pay, restore
her to the position of GS-11, step 10 Auditor effective July 8, 2018 , and refund to
the appellant any monies that it has collected from her pursuant to its
reduction -in-pay action . 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.
¶14 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Perso nnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all ne cessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calend ar days after the date of this decision.
¶15 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).
¶16 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’ s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons wh y the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶17 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
8
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached list s so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit f or seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board doe s not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision i n this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that fo rum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by 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.
10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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 rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for jud icial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 201 7. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U .S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cou rt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Mer it Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washingto n, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during th e 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, ref unds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | YEUNG_SUSAN_AT_0752_19_0654_I_1_FINAL_ORDER_2025544.pdf | 2023-04-26 | null | AT-0752 | NP |
3,230 | https://www.mspb.gov/decisions/nonprecedential/SCOTT_DAVID_AT_0432_20_0630_I_1_FINAL_ORDER_2025570.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID SCOTT,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.
DOCKET NUMBER
AT-0432 -20-0630 -I-1
DATE: April 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Atlanta, Georgia, for the appellant.
Patricia A. Watson , Esquire, Marshall Space Flight Center, 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 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 The appellant has filed a petition for review of the initial decision, which
sustained his performance -based removal under 5 U.S.C. chapter 43 . On petition
for review, the appellant argues that his performance did not warrant placement
on a Performance Im provement Plan (PIP); he was not provided with a reasonable
opportunity to improve his performance during the PIP period ; his performance
was not unacceptable at the end of the PIP period; the administrative judge erred
in concluding that he failed to prove his disability discrimination and age
discrimination affirmative defense claims; and the deciding official was
inherently biased against him due to his involvement in several stages of the
removal process . 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 c ase; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
¶2 Regarding the appellant’s argument that there was an “inherent bias” in the
agency’s process due to the fact that the deciding off icial fulfilled three different
roles in connection with the appellant’s 2018 -2019 unacceptable annual
performance rating and eventual removal, the appellant did not raise this
argument below , and so we need not consider it on review. See Clay v.
Departme nt of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (noting that the Board
generally will not consider an argument raised for the first tim e in a petition for
3
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) (same); 5 C.F.R. § 1201.115 (d).
¶3 Nevertheless, even if we were to consider this argument, we would find that
it is wit hout merit. An appellant’s due process rights are violated when his basic
rights are determined by a biased decision maker. Martinez v. Department of
Veterans Affairs , 119 M.S.P.R. 37 , ¶ 10 (2012). The appellant bears the burden
to establish actual bias or an intolerable risk of unfairness. Id. The appellant’s
assertion that the deciding official was biased because he wore “multiple hats” by
serving in three different roles (i.e., (1) as the approving official for the
appellant’s summary “Unacceptable” performance rating for the 2018 throu gh
2019 performance year, (2) as the deciding official for the appellant’s grievance
challenging that annual rating, and (3) as the deciding official for the
performance -based removal decision) is insufficient to establish bias, even if that
somehow led th e deciding official to be predisposed against the appellant. See
Svejda v. Department of the Interior , 7 M.S.P.R. 108 , 111 (1981) (finding no
general proscription of the appointment of a person as deciding official who may
be familiar with the facts of the case or may have a predisposition against the
appellant).
¶4 The appellant’s generalized allegations fail to establish that the deciding
official ’s independent judgment was compromised or that he did not meaningfully
consider all of the evidence. Because the appellant has not shown any bias, much
less bias constituting harmful error, he has failed to establish that the agency
committed procedural error by selecting this particular deciding official.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 12 01.113 (b).
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 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.
5
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 befor e
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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 to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a m ethod requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
7
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
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 | SCOTT_DAVID_AT_0432_20_0630_I_1_FINAL_ORDER_2025570.pdf | 2023-04-26 | null | AT-0432 | NP |
3,231 | https://www.mspb.gov/decisions/nonprecedential/WEAVER_DAMON_D_NY_0714_17_0236_I_1_FINAL_ORDER_2025058.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMON D. WEAVER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0714 -17-0236 -I-1
DATE: April 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harvey P. Sanders , Esquire, Cheektowaga, New York, for the appellant.
Justina L. Lillis , Buffalo, New York, 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
sustained his removal under the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017, Pub. L. No. 115 -41, 131 Stat. 862
(VA Accountability Act) (codified in relevan t part, as amended, at 38 U.S.C.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
§ 714). For the reasons discussed below, we GRANT the appellant’s petition for
review and REVERSE the initial decision. The appellant’s removal is
REVERSED.
BACKGROUND
¶2 Effective September 9, 2017, the agency removed the appellant from his
GS-5 Medical Supply Technician position in the Sterile Processing Services
Department (SPS) of the agency’s Western New York Healthcare System . Initial
Appeal File (IAF), Ta b 7 at 18, 22 . The agency removed the appellant pursuant
to 38 U.S.C. § 714, part of the VA Accountability Act , which was enacted on
June 23, 2017. IAF, Tab 7 at 22 -24. The agency removed the ap pellant based on
the following two charges, (1) jeopardizing patient welfare; and (2) failure to
follow procedures, each of which was supported by the same four incidents . Id.
at 29-31. The appellant filed an appeal with the Board challenging his removal .
IAF, Tab 1. He did not raise any affirmative defenses.
¶3 The administrative judge merged the two charges into a single charge of
jeopardizing patient welfare/failure to follow procedures, with four specifications.
IAF, Tab 7 at 29 -31, Tab 2 1, Initial De cision (ID) at 3 -4. Specification 1 alleged
as follows: on June 22, 2017, the SPS Assistant Manager (AM) observed debris
and colored fluid flowing from an endoscope that the appellant had cleaned and
placed in the Medivator .2 She removed the endoscope f rom the Medivator and
performed a channel check3 on it; and the endoscope failed the channel check,
indicating that it was not properly cleaned. IAF, Tab 7 at 29.
2 A Medivator is a machine used to disinfect endoscopes after they are cleaned by hand.
IAF, Tab 19 at 8 n.2 , Tab 20 at 6 .
3 A channel check is a test that indicates whether an endoscope contains contaminants.
IAF, Tab 19 at 8 n.3 , Tab 20 at 5 -6.
3
¶4 Specification 2 alleged that the AM then asked the appellant to clean the
endoscope again , and she performed another channel check . Id. The endoscope
failed, indicating that it was not properly cleaned. Id.
¶5 Specification 3 alleged that about 2 hours later, the AM and the day shift
supervisor conducted a channel check on another endoscope that the appellant had
placed in the Medivator . Id. This endoscope also failed the channel check,
indicating that it was not properly cleaned, even though the appellant had
documented that the equipment had been cleaned. Id.
¶6 Specification 4 alleged that, based on the results of the June 22, 2017
channel checks, on June 23 and 24, 2017, the agency conducted channel checks
on 30 endoscopes that the appellant had cleaned . Id. Seven of them failed the
channel check s, indicating that these endo scopes were not properly cleaned, even
though the appellant had documented that the y had been cleaned and had passed
the required channe l checks. Id.
¶7 After holding a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. ID at 2, 8. The administrative judge found
that the agency proved all of the specifications of the merged charge except
specifi cation 2, and that it established the merged charge by substantial evidence.
ID at 7 -8.
¶8 The appellant has filed a petition for review and the agency has filed a
response . Petition for Review (PFR) File, Tab s 1, 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 In a n appeal of an adverse action taken under 38 U.S.C. § 714 (a), the
agency must support its charges by substantial evidence. 38 U.S.C.
§ 714(d)(2)(A ). If the agency meets this burden, the Board may not mitigate the
agency ’s chosen penalty, but it is nevertheless required to review the penalty as
part of the agency ’s overall decision. 38 U.S.C. § 714 (d)(2)(B), (3)(C); Sayers v.
Department of Veterans Affairs , 954 F.3d 1370 , 1375 -79 (Fed. Cir. 2020).
4
¶10 The administrative judge found that the agency met i ts burden to prove
Specifications 1, 3, and 4, and therefore the merged charges. ID at 6 -7. In
support of this finding, s he explicitly credited the AM’s testimony based on her
demeanor. ID at 6. Specifically, the administrative judge credited th e AM’s
testimony that (1) on June 22, 2017, an endoscope the appellant had cleaned
failed a channel check , (2) later that day , the day shift supervisor performed a
channel check on a second endoscope that the appellant cleaned , which also
failed , and (3) because of these failures, on June 23 and 24, 2017, the AM tested
20 endoscopes the appellant cleaned, 7 of which failed the channel check. ID
at 5-6. We afford these explicit demeanor -based factual findings deference.4
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (stating
that the Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on obse rving the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so) .
¶11 On review, the appellant disputes the administrative judge’s findings of fact
and credibility d eterminations, and he argues the merits of the charges. PFR File,
Tab 1. We do not reach these arguments because developments in the case law
after the issuance of the initial decision require that the removal be reversed.
Specifically, after the initia l decision in this appeal was issued, the Board and the
U.S. Court of Appeals for the Federal Circuit issued precedential opinions
addressing the application of the VA Accountability Act to events that occurred
before the date of its enactment.
¶12 In Sayers , 954 F.3d at 1380 -82, the Federal Circuit found that applying
38 U.S.C. § 714 to conduct occurring prior to its enactment has an impermissible
4 Also, although the agency alleged in specification 4 that the AM performed channel
checks on 30 endoscopes, IAF, Tab 7 at 30, whether the AM tested 20 or 30 endoscopes
does not affect our finding that the agency’s action must be reversed.
5
retroactive effect, which Congress had not authorized . Therefore, the agency may
not use the VA Accountability Act to discipline an employee for matters that
occurred before its effective date, June 23, 2017. Sayers , 954 F.3d at 1374,
1380 -82. Subsequently, the court issued an opinion in Brenner v. Depart ment of
Veterans Affairs , 990 F.3d 1313 , 1327 -30 (Fed. Cir. 2021), addressing the
section 714 removal of an employee for performance issues both predating and
postdating June 23, 2017. The court in Brenner vacated the petitioner ’s removal
and remanded the appeal to the Board to determine whether the agency ’s removal
action was “supported by substantial evidence on the evidence of record that
postdates the Act.” Id. at 1330.
¶13 Finally, in Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 29,
the Board addressed the section 714 demotion of an employee based on alleged
neglect of duty both predating and postdating the effective date of the VA
Accountability Act. The Board considered whether it would be possible to
sustain the agency ’s action based solely on any alleged post -June 23, 2017
neglect of dut y, but it concluded that the action must be reversed because the
underlying alleged instances of misconduct by the appellant ’s subordinates were
“so factually interrelated that they cannot be fairly separated.” Id., ¶¶ 29-33
(quoting Boss v. Department of Homeland Security , 908 F.3d 1278 , 1282 -83 (Fed.
Cir. 2018)).
¶14 In this case, as in Brenner and Wilson , the charge encompasses events that
occurred both before and after the effective date of the VA Accountability Act.
We have considered whether the charge might be sustained based solely on
appellant ’s conduct after June 23, 2017. See Brenner , 990 F.3d a t 1330.
However, after a careful review of the record, we have determined that this case
is similar to Wilson . As i n Wilson , 2022 MSPB 7 , ¶ 33, the notice of proposed
removal in this case does not distinguish between misconduct that occurred
before and after the effective date of the Act. IAF, Tab 7 at 29 -30. Although
most of the channel checks were performed on June 23 and 24, 201 7, the
6
appellant cleaned most or all of those endoscopes on or before June 22. Id. at 33,
51-52. Our conclusion is supported by the fact that the appellant cleaned
endoscopes on June 23, 2017, for only 35 minutes before the agency removed him
from this work . Id. at 33, 39 , 51-52. The agency then conducted the channel
checks on the following 2 days “from the week,” and concluded that seven
endoscopes “were not clean [ed] correctly on [June 22, 2017]. ” Id. at 33, 52.
Thus, all of the misconduct underlyi ng the appellant’s removal occurred on
June 22, 2017, one day prior to the enactment of the VA Accountability Act , or
earlier . The charges and the record suggest that the June 23 and 24, 2017, test
results merely revealed misconduct that occurred before J une 23, 2017. Id. at 29.
¶15 For these reasons, we find that the appellant’s removal must be reversed.
See Wilson , 2022 MSPB 7 , ¶ 33. To the extent the agency wishes to take a new
adverse action based on events occurring after June 23, 2017, it may do so under
the procedures of 38 U.S.C. § 714 or 5 U.S.C. chapter 75. To the extent the
agency wishes to rely on evidence of misconduct that predates the Act, it must
proceed in accordance with 5 U.S.C. chapter 75. See Brenner , 990 F.3d at 1330.
ORDER
¶16 We ORDER the agency to cancel the removal action and restore the
appellant effective September 9, 2017 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶17 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations , as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith in the
agency ’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board ’s Order. If there is a dispute about the amount of back pay, interest
7
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶18 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board ’s Order and of the actions it h as
taken to carry out the Board’ s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶19 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board ’s Order, the appellant may file a petition for enforcement
with the 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 carrie d out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶20 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
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
Board ’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you m ust 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 , 1201.20 2, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
8
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 in itial decision on your appeal.
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 se eking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Plea se read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the c ourt
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issu ance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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. 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
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, 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
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
6 The original statutory p rovision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows app ellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is r etroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
for Merit Systems 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
13
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determinatio n, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of al l amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, wor kers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no 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).
14
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 Su 9999 m amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payrol l/Personnel
Operations at 504 -255-4630. | WEAVER_DAMON_D_NY_0714_17_0236_I_1_FINAL_ORDER_2025058.pdf | 2023-04-25 | null | NY-0714 | NP |
3,232 | https://www.mspb.gov/decisions/nonprecedential/JENKINS_PATRICK_A_DC_0752_19_0349_I_2_FINAL_ORDER_2025070.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICK A. JENKINS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -19-0349 -I-2
DATE: April 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas J. Gagliardo , Esquire, Silver Spring, Maryland, for the appellant.
Richard Savie t, 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 initia l decisi on, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 req uired 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 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
address the appellant’s argument regarding the appointment of the administrative
judge , we AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant was employed by the agency as a General Supply Spec ialist
in Virginia. Jenkins v. Department of Defense , MSPB Docket No. DC-0752 -19-
0349 -I-1, Initial Appeal File (IAF), T ab 5 at 12. In April 2018, the appellant
travelled to Houston, Texas, for a work -related event. IAF, Tab 20 at 7, Tab 26
at 4-5. On the first night of that trip, the appellant was shot by a Houston police
officer after the appellant a llegedly attempted to enter the officer’s house.
Jenkins v. Department of Defense , MSPB Docket No. DC -0752 -19-0349 -I-2,
Refiled Appeal File (RAF ), Tab 7 at 14 -15, 21. The appellant was hospitalized
for a week and unable to attend the work event that was the purpose of his trip.
IAF, Tab 20 at 10, Tab 26 at 4-5. He was charged with attempted burglary and
jailed upon his release from the hospital , but the criminal charges were later
dismissed. IAF, Tab 6 at 23, Tab 20 at 10, 12, Tab 26 at 4 -5.
¶3 In November 2018, the agency proposed the appellant’s removal on charges
of conduct unbecoming a Federal employee and failure to report criminal charges
3
to the agency. IAF, Tab 6 at 6 -12. The conduct unbecoming charge related to the
appellant’s conduct during the trip to Houston. Id. at 6-8. The charge of failur e
to report criminal charges related to a prior criminal charge that the agency
discovered during its investigation of the Houston incident. Id. at 8. In
February 2019, after the appellant responded to the proposed removal, the agency
issued a decision r emoving him. IAF, Tab 5 at 13 -17. The deciding official
sustained only the conduct unbecoming charge but concluded that the single
sustained charge nevertheless justified the appellant’s removal. Id.
¶4 The appellant filed a timely Board appeal challenging his removal. IAF,
Tab 1. He raised affirmative defenses of discrimination based on race and
disability as well as harmful procedural error. Id. at 3. The appellant initially
requested a hearing, id. at 2, but he later withdrew that request, RAF, Tab 3 .3
¶5 The administrative judge issued an initial decision on the written record
affirming the appellant’s removal. RAF, Tab 13, Initial Decision (ID). He found
that the agency proved the conduct unbecoming charge by preponderant evidence
and that the appell ant failed to prove his claims of discrimination or harmful
procedural error. ID at 10 -25. He further found that the agency established a
nexus between the appellant’s misconduct and the efficiency of the service. ID
at 25-26. Finally, the administrati ve judge found that the agency considered the
relevant factors and that the penalty of removal was within the tolerable limits of
reasonableness. ID at 27 -29.
¶6 The appellant has filed a timely petition for review of the initial decision.
Jenkins v. Depart ment of Defense , MSPB Docket No. DC -0752 -19-0349 -I-2,
Petition for Review (PFR) File, Tab 5. On petition for review, he r aises the
following arguments: (1) the administrative judge lacked authority to issue the
initial decision because he was not properl y appointed consistent with the
3 The administrative judge dismissed the appeal wit hout prejudice for a period of
40 days. IAF, Tab 40, Initial Decision. The Board automatically refiled the appeal
upon the expiration of that period. RAF, Tab 1.
4
Appointments Clause of the U.S. Constitution; (2) the administrative judge erred
in his credibility determinations; and (3) the administrative judge erred in
rejecting his discrimination claims. Id. at 5. The agency has re sponded in
opposition to the petition for review, and the ap pellant has filed a reply. PFR
File, Tabs 7 -8.
The appellant did not timely raise his argument regarding the appointment of the
administrative judge.
¶7 For the first time on petition for review, th e appellant argues that the
administrative judge was not properly appointed under the Appointments Clause.
PFR File, Tab 5 at 9 -11. He cites the U.S. Supreme Court’s decision in Lucia v.
Securities and Exchange Commission , 138 S. Ct. 2044 (2018), in support of his
argument that the administrative judge is an inferior officer of the United States
who was not appointed in compliance with the Appointments Clause. Id. at 9-10.
He argues that, under Lucia , he is entitled to a new adjudication before a properly
appointed officer. Id. at 10 -11.
¶8 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) ; 5 C.F.R. § 1201.115 (d).
The appel lant offers no justification for his failure to raise his Appointments
Clause claim before the administrative judge. We note that the Lucia decision on
which the appellant relies was issued before the appellant filed his initial appeal
in 2019. The Board recently held that it would not consider an Appointments
Clause claim raised for the first time on petition for review, even when the Lucia
decision was issued after the close of the record before the administrative judge.
McClenning v. Department of the Army , 2022 MSPB 3 , ¶¶ 5-15. Consistent with
McClenning , we hold that the appellant forfeited his Appointments Clause claim
by failing to raise it before the administrative judge.
5
The appellant has not shown any error in the administrative judge’s credibility
determinations.
¶9 The appellant challenges the administrative judge’s credibility
determinations, particularly his failure to credit the appellant’s assertion that his
actions on the night in question “were involuntary because he had been beaten
and robbed, and was disoriented.” PFR File, Tab 5 at 11. If, as h ere, an
administrative judge’s findings are not based on the obse rvation of witnesses’
demeanor, the Board is free to reweigh the evidence and substitute its own
judgment on credibility issues. Haebe v. Department of Justice , 288 F.3d 1288 ,
1302 (Fed. Cir. 2002); Elder v. Department of the Air Force , 124 M.S.P.R. 12 ,
¶ 21 (2016). W e have reviewed the record , and we agree with the administrative
judge that the appellant’s claim is not credible.
¶10 The appellant first raised the claim of being beaten and robbed in an
October 2019 affidavit. RAF, Tab 8 at 33. H owever, he did not assert it as fact
based on his own recollection; to the contrary, he stated in the same affidavit that
he “remember[ed] almost nothing” about the events of that night. Id. Instead, the
appellant asserted in his affidavit that the police told him during an inter view in
the hospital that they suspected he had been beaten and robbed. Id. However,
even that assertion is inconsistent with the appellant’s deposition testimony,
given prior to the affidavit, in which h e stated that he did not recall any
conversation with the police while he was in the hos pital. IAF, Tab 21 at 31 -34.
Additionally, as the administrative judge noted in the initial decision, the
appellant offered no evidence to support the assertion that he had been beaten and
robbed prior to the incide nt during which he was shot. ID at 15 -16. We therefore
find no error in the administrative judge’s determination that the appellant failed
to establish that his actions on the night in question were involuntary due to being
beaten and robbed.
6
The appell ant failed to prove his discrimination claims.
¶11 As to his discrimination claims, the appellant argues on petition for review
that the agency’s decision to charge him with failure to report criminal charges
and its decision to return him to work prior to pro posing his removal are evidence
of discriminatory animus. PFR File, Tab 5 at 16 -17. He also cites the deciding
official’s “capricious restating of the specification in support of the charge of
conduct unbecoming” after criminal charges had been dropped a nd his record
expunged. Id. at 17. As to the failure to report criminal charges, the
administrative judge credited the proposing official’s explanation that he
proposed that charge because there was no official record that the appellant had
properly repo rted the earlier criminal charge to the agency. ID at 20 -21; RAF,
Tab 11 at 40. As to the decision to re turn the appellant to work, the
administrative judge credited the proposing official’s explanation that he returned
the appellant upon receiving medic al clearance for the appellant to work and that
at the time he did so no disciplinary action had been initiated against the
appellant. ID at 21; RAF, Tab 11 at 38. We agree with the administrative
judge’s handling of those matters. The fact that the age ncy proposed a charge of
failure to report criminal charges but then did not sustain that charge upon receipt
of additional evidence does not support a finding of discrimination. ID at 20 -21;
RAF, Tab 11 at 40. Likewise, it was entirely appropriate for t he proposing
official to return the appellant to work upon receipt of medical clearance to do so
and then to initiate the disciplinary process based on the appellant’s misconduct.
¶12 As to the appellant’s argument regarding the deciding official’s “capricious
restating of the specification in support of the ch arge of conduct unbecoming,” he
provides no further context or support for that argument on petition for review.
PFR File, Tab 5 at 17. Before the administrative judge, the appellant raised the
same arg ument along with the following: “After [the appellant] demonstrated
clearly and convincingly that the criminal charges against him had been dismissed
and his record expunged, it became apparent that unless the specification was
7
changed the deciding offici al could not justify removing him.” RAF, Tab 8 at 27.
However, as the administrative judge correctly found, the agency based its
conduct unbecoming charge on the appellant’s actions, not on the existence of
criminal charges based on those actions. ID at 13. Therefore, the fact that the
criminal charges were dropped does not affect the validity of the agency’s charge
or establish discriminatory motive.
¶13 In the initial decision, the administrative judge relied on Southerland v.
Department of Defense , 119 M.S.P.R. 566 , ¶¶ 23 -25 (2013), to analyze the
appellant’s disparate treatment disability discrimination c laim, and he concluded
that the appellant failed to show that his disability was a motivating factor in the
removal action. ID at 22 -23. In Southerland , the Board held that an appellant
bears the burden of proving by preponderant evidence that his disabi lity was a
motivating factor in the adverse action, but the agency can limit the appellant’s
remedy by showing by clear and convincing evidence that it would have taken the
same action in the absence of discriminatory motive. Southerland , 119 M.S.P.R.
566, ¶¶ 23 -25. After the administrative judge issued the initial decision in this
appeal, the Board issued Pridgen v. Office of Management and Budget ,
2022 MSPB 31 . In Pridgen , we clarified the proper analytic framework for a
disabi lity discrimination claim. Pridgen , 2022 MSPB 31 , ¶¶ 35-42.
Nevertheless, under both Southerland and Pridgen , the appellant b ears the initial
burden of proving by preponderant evidence that his disability was a motivating
factor in the agency’s removal action. Pridgen , 2022 MSPB 31 , ¶ 40;
Southerland , 119 M.S.P.R. 566 , ¶¶ 18, 23. Because we agree with the
administrative judge that the appellant failed to meet his initial burden, the
administrative judge’s reliance on Southerland , rather than Pridgen , is
8
immaterial.4 We find no material error in the administrative judge’s
determination that the appellant failed to prove his discrimination claims.5
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4 Because we discern no error with the administrative ju dge’s findings that neither his
race nor disability was a motivating factor in his removal, we do not reach the question
of whether his race or disability was a “but -for” cause of the removal. See Pridgen ,
2022 MSPB 31 , ¶¶ 40, 42.
5 The initial decision mentions direct evidence, types of circumstantial evidence, and
composing a convincing mosaic of discrimination. ID at 20. The Board has clarified
that administrative judges are not required to separate “direct” from “indirect” evidence
and to proceed as if such evidence were subject t o different legal standards or to require
appellants to demonstrate a “convincing mosaic” of discrimination. Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016), clarified by Pridgen ,
2022 MSPB 31 , ¶¶ 23-24. However, insofar as we find no indication that the
administrative judge disregarded any evidence because of its direct or circumstantial
nature or held the appellant to too high a standard, a different outcome is not warranted.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one 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 fo llowing
address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
discrimin ation based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.g ov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a re presentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by r egular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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. Th e All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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_PATRICK_A_DC_0752_19_0349_I_2_FINAL_ORDER_2025070.pdf | 2023-04-25 | null | DC-0752 | NP |
3,233 | https://www.mspb.gov/decisions/nonprecedential/SHAFFER_GREGORY_W_DA_0752_15_0466_I_2_FINAL_ORDER_2025096.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GREGORY W. SHAFFER,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -15-0466 -I-2
DATE: April 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Amy Armstrong , 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
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 d iscretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulat ions, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 fo r granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 In an initial decision dated March 8, 2017, the administrative judge
affirmed the appellant’s removal from his Special Agent position with the Federal
Bureau of Investigation based on five charges of misconduct. Shaffer v.
Department of Justice , MSPB Dock et No. DA-0752 -15-0466 -I-2, Appeal File (I -2
AF), Tab 17, Initial Decision (ID) at 4 -13. The administrative judge also found
that the appellant failed to prove that the agency committed harmful error, ID
at 14-17, and that the action promoted the efficien cy of the service and the
penalty was within the bounds of reasonableness, ID at 17-23. The appellant has
filed a petition for review in which argues that the administrative judge erred by
finding that he di d not prove his claim of harmful error. Shaffer v. Department of
Justice , MSPB Docket No. DA-0752 -15-0466 -I-2, Petition for Re view (PFR) File,
Tab 1. The agency responds in opposition to the petition for review. PFR File,
Tab 3.
¶3 In the notice of removal, the agency informed the appellant that he had a
right to raise an internal appeal with the agency’s Disciplinary Review Board
(DRB). Shaffer v. Department of Justice , MSPB Docket No. DA-0752 -15-0466 -
I-1, Initial Appeal File, Tab 10, Subtab 4b at 25. He invoked his right to DR B
review , but, while his appeal was pending, the agency issued a final decision
revoking his security clearance. I-2 AF, Tab 15 at 20. Based on the revocation of
3
the appellant’s security clearance , the DRB “administratively closed” his appeal
without reaching a d ecision. Id. at 9.
¶4 On review, the appellant reiterates his argument that closing his DRB
appeal without reaching a decision constituted harmful error. PFR File, Tab 1
at 6-10; I -2 AF, Tab 14 at 6-10. To prove an affirmative defense of harmful
error, the appellant must show that an error occurred and that the error was
harmful. Rogers v. Department of Defense , 122 M.S.P.R. 67 1, ¶ 7 (2015);
Parker v. Defense Logistics Agency , 1 M.S.P.R. 505 , 513 (1980). Harmful error
occurs when “[e]rror by the agency in the application of its procedures . . . likely
. . . caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error.” 5 C.F.R. § 1201.4 (r). We cannot
determine on this record whether the agency committed a procedural error.
Neither party has submitted a copy of the rules or regulations governing the
agency’s DRB, and so it is impossible to know whether the agency’s decision to
close the appellant’s DRB appeal violated the rules of the DRB program or was,
in fact, consistent with those rules. Because there is no evidence establishing
what procedure the agency allegedly violated, w e find that the appellant failed to
show that the agency committed procedural error. Therefore, the administrative
judge correctly found that the appellant failed to prove his affirmative defense of
harmful error.
¶5 The appellant also makes a bare allegatio n on review th at the removal was
“not in accordance with law.” PFR File, Tab 1 at 6 ; I-2 AF, Tab 14 at 6 . An
agency action is unlawful in its entirety and therefore “not in accordance with
law” under 5 U.S.C. § 7701 (c)(2)(C) if there is no legal authority for the action.
Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 683-84 (1991). The
administrative judge correctly found that the appellant failed to establish that the
dismissal of his DRB appeal violated a law, rule, or regulation and, therefore,
failed to prove that t he action was not in accordance with law. ID at 17 n.9. The
4
appellant’s bare allegation on review is insufficient to disturb the administrative
judge ’s finding.
¶6 The initial decision is affirmed.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this fina l decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the right s described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully f ollow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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.
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
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
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 | SHAFFER_GREGORY_W_DA_0752_15_0466_I_2_FINAL_ORDER_2025096.pdf | 2023-04-25 | null | DA-0752 | NP |
3,234 | https://www.mspb.gov/decisions/nonprecedential/MURRAY_IDIANA_NY_844E_21_0093_I_1_FINAL_ORDER_2025138.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
IDIANA MURRAY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-844E -21-0093 -I-1
DATE: April 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James D. Muirhead , Esquire, Hackensack , New Jersey, for the appellant.
Shaquita Stockes and Heather Dowie , Washington , D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the reconsideration decision issued by the Office of Personnel
Management (OPM) denying the appellant a decision on the application of her
deceased husband (the decedent) for disability retirement benefits . For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
reasons discussed below, we GRANT the agency’s petition for review and
REVERSE the initial decision , finding that OPM correctly denied the appellant a
decision on the decedent’s disability retirement application .
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The decedent was an employee of the United States Postal Service from
1987 until his death on June 2, 2014. Initial Appeal File (IAF), Tab 6 at 32, 36,
59-60. In late 2012, he stopped working upon the recommendation of h is treating
physician because of his medical conditions and limitations , and he was placed in
a leave without pay (LWOP) status on March 1, 2013 . IAF, Tab 6 at 38 , Tab 7
at 8, 15, Tab 13, Hearing Recording (HR) (testimony of the appellant) . Due to a
requirement that an employee’s Federal Employee s’ Group Life Insurance
(FEGLI) coverage stop when the employee remains in a nonpay status for
12 months , the decedent’s FEGLI coverage was terminated effective March 8,
2014 . IAF, Tab 6 at 10-11, 20, 37; see 5 U.S.C. § 8706 (a); 5 C.F.R.
§§ 870.601 (d)(1), 870.602(a) . In April 2014,2 the decedent filed an application
for disability retirement under the Federal Employees ’ Retirement System
(FERS) . IAF, Tab 7 at 5 -23, 34 -51. OPM received his disability retirement
application on May 6, 2014. IAF, Tab 6 at 25. After the decedent’s death on
June 2, 2014 , the appellant filed a Standard Form ( SF) 3104, Application for
Death Benefits, with OPM. Petition for Review (PFR) File, Tab 1 at 24 -32.3
¶3 In August 2018, t he appellant requested that OPM issue a decision on the
decedent’s April 2014 disability reti rement application. IAF, Tab 6 at 55 -57.
OPM responded, stating that it would not issue a decision because the decedent
2 Different dates appear on different parts of the application, but the entirety of the
applica tion does not appear to have been filed until April 2014. IAF, Tab 7 at 5 -23,
34-51.
3 Although the appellant filed two separate SF 3104s, their distinctions do not appear to
be material . See PFR File, Tab 1 at 24 -32. The decedent’s d aughter’s separate SF 3104
also has no apparent relevance to this appeal. See IAF, Tab 6 at 39 -43.
3
was still on his agency payroll , in an LWOP status , when he died. Id. at 12. In
another letter, OPM explained that the decedent’s disability retirement claim was
“mooted” by the fact that he died as an “employee” as defined in the FERS
regulations, and that OPM therefore “re-cut” his retirement case as one of a
death -in-service and authorized payment of the survivor annuity and basi c
employee death benefit to the appellant according to the applicab le regulation .
Id. at 8-9. The appe llant requested reconsideration, and OPM affirmed its initial
decision in its reconsideration decision, which the appellant appealed to the
Board .4 Id. at 6-7, 52; IAF, Tab 1.
¶4 After affording the appellant her requested hearing, the administrative judge
reversed OPM’s reconsideration decision, finding that OPM was statutorily
obligated to adjudicate the decedent’s disability retirement application and that
the decedent qualified for disability retirement. IAF, Tab 16, Initial Decision
(ID) at 5 -10. The administrative judge ordered OPM to process the decedent’s
disability retirement benefits and, based on a finding that OPM’s failure to render
a decision on the decedent’s disability retirement application also invalidated his
life insurance, ordered OPM to retroactively reinstate the decedent’s life
insurance .5 ID at 6, 10.
¶5 On review, among other arguments, OPM contends that the administrative
judge failed to recognize that the decedent’s status as an “employee” under FERS
death b enefit regulations determined the appellant’s entitlements , and that the
Board lacked jurisdiction to order OPM t o reinstate the decedent’s life insurance.
PFR File, Tab 1 at 10 -22. The appellant filed a response. PFR File, Tab 3.
4 In a separate reconsideration decision not appealed to the Board, OPM found the
appellant ineligible to receive FEGLI proceeds as a result of the decedent’s death. IAF,
Tab 6 at 10 -11.
5 The administrative judge did not order interim relief.
4
Because the decedent was an “employee” as defined in 5 C.F.R. § 843.102 when
he died , the appellant was not entitled to benefits awarded to a spouse of a
deceased disability retiree and OPM was not required to process the decedent’s
disability retirement application .
¶6 The appellant’ s entitlement to a survivor annuity must be determined from
the statutes and regulations governing this benefit. Simpson v. Office of
Personnel Management , 96 M.S.P.R. 52 , ¶ 9 (2004). In part 843 of title 5 of the
Code of Federal Regulations, the OPM regulations covering FERS death benefits ,
the term “employee ” is defined to “include[] a person who has applied for
retirement under FERS but had not been s eparated from the service prior to his
or her death , even if the person’ s retirement would have been retroactively
effective upon separation.” 5 C.F.R. § 843.102 (emphasis added). “Reti ree,” on
the other hand , is defined as “ a former employee . . . who is receiving recurring
payments under FERS based on service by the employee . . .” an d includes a
person who, at the time of death, “ had been separated from the service and had
met all the requirements to receive an annuity including having filed an
application for the annuity prior to his or her death .” 5 C.F.R. § 843.102
(emphasis added) .
¶7 The provisi ons of subpart C of part 843 separately address FERS death
benefits according to the status of the person on whose service the benefits are
based . For instance, 5 C.F.R. § 843.306 provid es for an annuity for a spouse of a
deceased “non -disability retiree ,” following which 5 C.F.R. § 843.307 provides
for an annuity for a spouse of a deceased “disability retiree.” Spouses of both
disability and non -disability retirees are also entitled to a supplemental annuity
provided in 5 C.F.R. § 843.308 . Meanwhile , death benefits awarded to a spouse
of an “employee” are set forth in their own separate sections with in subpart C ,
namely 5 C.F.R. § 843.309 , which provides for a spouse’s entitlement to a
defin ed sum based on the employee’s basic or average pay, and 5 C.F.R.
§ 843.310 , which provides for an employee’s spouse ’s entitlement to an annuity .
It is thus apparent from the structure of subpart C that the definitions of
5
“employee” and “retiree” in 5 C.F.R. § 843.102 , which invoke different sets of
entitlements, were intended to be mutually exclusive.
¶8 These regulations in subpart C parallel the statutory provisions they were
promulgated to implement . Thus, the definition of a “retiree” under 5 C.F.R.
§ 843.102 is analogous to the definition of an “annuitant” under 5 U.S.C.
§ 8401 (2), which, in relevant part, defines an annuitant as a “former employee”
who qualifies for and claims an annuity. In turn, the regulation providing for
death benefits to the widow of a “disability retiree” under 5 C.F.R. § 843. 307 is
paral lel to the statutory provision at 5 U.S.C. § 8442 (g) providing for bene fits to
the widow of a “disability annuitant .” Likewise, t he regulatory provision
authorizing death benefits to the widow of an “employee” under 5 C.F.R.
§§ 843.309 -843.310 parallel the statutory provisions authorizing the award of
benefits to the widow of an employee found at 5 U.S.C. § 8442 (b)(1) . The
statutory definition of “employee” is contained in 5 U.S.C. § 8401 (11).
¶9 Thus, c ontrary to the administrative judge’s pronouncement, this case does
not present a situation in which OPM’s litigating position is “wholly unsupported
by regulations, rulings, or administrativ e practice.” ID at 6 (internal citations
omitted). Rather, this case merely requires identifying the appropriate status of
the decedent at the time of his death , and determining the benefits payable to the
appellant based on that status as prescribed by law and regulation .
¶10 The record establishes that t he decedent died as an “employee” and not as a
“retiree ” as defined in 5 C.F.R. § 843.102 , since he was not separated from his
former em ploying agency prior to his death . IAF, Tab 6 at 8, 36; PFR File, Tab 1
at 29 . As the structure and terms of subpart C indicate , the decedent’s status as
an “employee” was dispositive in determining the appellant’s entitlements upon
his death.6 OPM therefore appropriately paid the appellant the basic employee
6 In Jones v. Office of Personnel Management , 37 M.S.P.R. 163 , 167 -68 (1988), the
Board found a decedent covered under the Civil Service Retirement System (CSRS),
6
death benefit and the survivor annuity awarded to spouses of deceased
“employees” under 5 U.S.C. 8442 (b)(1) and 5 C.F.R. §§ 843.309 -843.310 . IAF,
Tab 6 at 8 . Conversely, b ecause the decedent was not a “retiree” under 5 C.F.R.
§ 843.102 or, equivalently, an “annuitant” under 5 U.S.C. § 8401 (2) at the time of
his death, the appellant was not entitled to benefits awarded to a spouse of a
retiree or annuitant who retired due to disabilit y. That the decedent had filed a
disability retirement application prior to his death does not affect this outcome , as
the definition of “employee” in 5 C.F.R. § 843.102 includes persons who had
applied for retirement but were not separated from Federal service prior to their
deaths . Any OPM decision on the decedent’s di sability retirement application
would have therefore been superfluous , and the administrative judge erred in
finding OPM obligated to render such a decision .
¶11 In its reconsideration decision , OPM cited 5 C.F.R. § 844.203 (c)(1), a
regulation covering disability retirement applications which states : “OPM will
issue its decision in writing to the individual and to the employing agency,” and
argued that because it could no longer issue a decision to the decedent , this
provision justified not issuing any decision on the decedent’s disability retirement
appli cation . IAF, Tab 6 at 7. In reversing OPM’s reconsideration decision, the
administrative judge found that 5 U.S.C. § 8461 (c) and (d) , which state that OPM
“shall adj udicate all claims” and “shall determine questions of disability and
dependency,” respectively, held precedence over OPM’s interpretation of
5 C.F.R. § 844.203 (c)(1) and obligated OPM to render a decision on the
appellant’s disability retirement application. ID at 5 -6.
under which the definitions of “retiree” and “employee” are essentially the same as
those under FERS, compare 5 C.F.R. § 843.102 , with 5 C.F.R. § 831.112 (b), to be a
“retiree” rather than an “employee” despite not having been separated prior to her
death. The Board’s decision in Jones , however, was based on a circumstance not
presented here —OPM finding, prior to the decedent’s death, that she was entitled to a
disability annuity, 37 M.S.P.R. at 167 -68—and Jones thus does not control the outcome
of this appeal.
7
¶12 However, even assuming the administrative judge was correct to reject
OPM’s interpretation of 5 C.F.R . § 844.203 (c)(1), she erred in finding that
5 U.S.C. § 8461 (c) and (d) entitled the decedent to a decision on his disability
retirement application —a decision she then made by granting him disability
retirement benefits . ID at 10. Requiring OPM to pay the appellant the death
benefits of a widow of a disability retiree would not only contradict the FERS
death benefits regulatory scheme as discussed above , but lead to a situati on in
which the spouse of an “employee” under 5 U.S.C. § 8401 (11) is, contrary to
5 U.S.C. § 8442 , granted the entitlements of the spouse of a deceased “annuitant,”
i.e., a “former employee ” under 5 U.S.C. § 8401 (2). Such a reading would be
contrary to the basic rule of statutory construction that “[a] statute should be
construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” Corley v. United States,
556 U.S. 303 , 314 (2009) (internal quotations omitted) ; Resnick v. Office of
Personnel Management , 120 M.S.P.R. 356, ¶¶ 7-8 (2013). Further, because
specific statutory language aimed at a particular situation ordinarily controls over
general statutory language, the specific distinctions in 5 U.S.C. § 8442 (b)(1) and
(g) between death benefits awarded to the widows of “employees” and the
widows of “disability annuitants” control over the general commands in 5 U.S.C.
§ 8461 (c) and (d) . See, e.g. , Hall v. Office of Personnel Management ,
102 M.S.P.R. 682 , ¶ 9 (2006) ; Lee v. Department of Justic e, 99 M.S.P.R. 256 ,
¶ 25 (2005) (finding the general provisions of the Back Pay Act do not govern
remedies for claims under the Uniformed Services Employment and
Reemployment Rights Act (USERRA), which contains provisions specifically
tailored to remedy USERRA violation s). The administrative judge ’s citation of
the Board’s statement in Suter v. Office of Personnel Management , 88 M.S.P.R.
80, ¶ 8 (2001) , that “OPM is required to ‘adjudicate all claims’ and ‘determine
questions of disability’ arising under the provisions of FERS administered by
OPM,” ID at 5 , does not support her decision, as the purpose of this statement in
8
Suter was to distinguish between the resp onsibilities of OPM and those of the
Office of Workers’ Compensation Programs —not to pronounce an unqualified
responsibility of OPM. Suter , 88 M.S.P.R. 80 , ¶ 8.
¶13 In support of her decision , the administrative judge also cited a
nonprecedential Board decision and an initial decision to find that OPM has
previously rendered decisions on disability retirement applications of deceased
applicants. ID at 6 (citing Rucker v. Office of Personnel Management , MSPB
Docket No. CH-844E -11-0340 -B-1, Final Order (Aug. 9, 2013) ; Baird v. Office of
Personnel Management , MSPB Docke t No. PH -831E -06-0299 -I-1, Initial
Decision (July 6, 2006) ). Nonprecedential Board decisions and initial decisions
have no precedential value and t he administrative judge erred in relying on them .
Roche v. Department of Transportation , 110 M.S.P.R. 2 86, ¶ 13 (2008) (stating
that initial decision s have no precedential value) , aff’d , 596 F.3d 1375 (Fed. Cir.
2010); National Labor Relations Board v. Beddow , 47 M.S.P.R. 103 , 105 (1991)
(same); 5 C.F.R. § 1201. 117(c)(2) (stating that nonprecedential decisions “have
no precedential value”). However , even in p recedential decisions, the Board has
ordered OPM to grant disability retirement benefits to deceased applicants. See,
e.g., Widmer v. Office of Personnel Management , 103 M.S.P.R. 363 , ¶¶ 7, 20
(2006) ; Thomas v. Office of Personnel Management , 54 M.S.P.R. 686 , 688, 691
(1992). Nevertheless , in both Widmer and Thomas , the deceased applicant s were
separated from their respective agenc ies before their death s, opening the
possibility for them to qualify as “retiree s” or “annuitant s” entitled to disability
retirement annuit ies.7 Widmer , 103 M.S.P.R. 363 , ¶¶ 7, 9; Thomas , 54 M.S.P.R.
at 687-88. These cases thus do not require that OPM adjudicate the decedent’s
7 This is also true for the deceased applicants in the nonprecedential decision and initial
decision cited by the administrative judge. Rucker v. Offic e of Personnel Management ,
117 M.S.P.R. 669 , ¶ 2 (2012); Rucker v. Office of Personnel Management , MSPB
Docket No. CH-844E -11-0340 -B-1, Initial Decision at 1 (Sept. 28, 2012); Baird , MSPB
Docket No. PH -831E -06-0299 -I-1, Initial Decision at 2 -3.
9
disability retirement application as, as noted, he was still an employee at the time
of his death .
¶14 Lastly on this issue , as OPM’s approval of the decedent’s disability
retirement application before his death would ostensibly have led to his
separation by his former employing agency and conversion from “employee”
under 5 U.S.C. § 8401 (11) or 5 C.F.R. § 843.102 to “retiree ” under 5 C.F.R.
§ 843.102 or “annuitant ” under 5 U.S.C. § 8401 (2), the appellant contends that
her entitlements should not be affected by OPM’s failure to promptly process the
decedent’s disability retire ment application. IAF, Tab 9 at 7 -8. However, the
appellant has provided no statutory or r egulatory basis for this claim. T here is no
set time limit for OPM to adjudicate disability retirement applications,8 and the
decedent died less than 2 months afte r he filed his disability retirement
application and less than 1 month after OPM received it. IAF, Tab 6 at 25, 59 -60,
Tab 7 at 48 -51. The appellant’s allegation of OPM delay in processing the
decedent’s disability retirement application thus does not entitle her to relief.9
The administrative judge erred in ordering OPM to reinstate the decedent’s
FEGLI benefits.
¶15 Finally, the administr ative judge erred in ordering OPM to reinstate the
decedent’s FEGLI benefits . Not only was her rationale for doing so —that OPM’s
8 OPM discloses that it takes 2 months to process retirement applications in common
cases and possibly longer for cases of disability retirement. OPM, Learn more about
applying for retirement benefits , OPM.GOV, https://www.opm.gov/support/retirement/fa
q/applying -for-retirement -benefits (last visited Apr. 19 , 2023).
9 While we sympathize with the appellant’s situation, the language of the relevant
statutory provisions and regulations leave s us with no option. To avoid such a result in
the future, OPM should consider providing disability retirement applicants with explicit
notice on this issue. OPM could, for example, explain on its disability retirement
application that, in determining wha t benefits a decedent’s spouse is entitled to, the
decedent’s status as an “employee” or a “retiree” will be dispositive. OPM could also
explain that the definition of “employee” in 5 C. F.R. § 843.102 includes persons who
had applied for retirement but were not separated from Federal service prior to their
deaths.
10
“failure” to render a decision on the decedent’s disability retirement application
invalidated his life insurance , ID at 6—based on an incorrect premise as
discussed above , but the Board lack s jurisdiction over claims concerning Federal
life insurance benefits . Richards v. Office of Personnel Management ,
97 M.S.P.R. 291 , ¶ 6 (2004); see 5 U.S.C. § 8715 . As she was advised in a
separate OPM decision finding her ineligible for FEGLI proceeds based on the
decedent’s death, the appellant was required to appeal this finding of ineligibility
to the app ropriate Federal district court. IAF, Tab 6 at 10-11.
¶16 In su m, based on the discussion set forth above, we reverse the initial
decision and affirm OPM’s reconsideration decision .
NOTICE OF APPEAL RIG HTS10
This Final Order is the final decision of the Merit Systems Protection
Board in this appeal . 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 Protect ion Board does not provide legal advice
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek re view of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your ch osen
forum.
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included i n final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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 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
12
were affected by an action that is appealable to the Board and that 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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competen t jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with t he U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MURRAY_IDIANA_NY_844E_21_0093_I_1_FINAL_ORDER_2025138.pdf | 2023-04-25 | null | NY-844E | NP |
3,235 | https://www.mspb.gov/decisions/nonprecedential/WHETTEN_HERNANDEZ_ANGELA_DAWN_DE_3443_16_0457_I_1_FINAL_ORDER_2025149.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELA DAWN WHETTEN -
HERNANDEZ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-3443 -16-0457 -I-1
DATE: April 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Simp McCorvey, III , Albuquerque, New Mexico, for the appellant.
Zulema Hinojos -Fall, Esquire, Albuquerque, New Mexico, 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
dismissed the appellant’s termination appeal as withdrawn . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contain s erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 th e appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petiti oner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R.
§ 1201.113 (b).
¶2 The appellant filed an appeal of her termination from her Licensed Practical
Nurse position dur ing her initial year of service. Initial Appeal File (IAF), Tab 1.
As described in the initial decision, while the appeal was pending before the
Board, the appellant , who was represented, unequivocally withdrew her appeal
during a telephonic conference. IAF, Tab 8 (withdrawal audio reco rding) , Tab 9,
Initial Decision (ID) at 1-2. The administrative judge found that the appellant’s
withdrawal of her appeal was knowing and freely made and that she understood
that the administrative judge would dismiss the appeal with pre judice to refiling .
ID at 2. The administrative judge dismissed the appeal in a September 28, 2016
initial decision. ID . The agency has now petition ed for review, arguing that the
appellant withdrew her appeal based on incorrect information, and moves to
dismiss the app eal for lack of jurisdiction. Petition for Review (PFR) File, Tab 1
at 5-6.2
2 There is a question regarding the timeliness of the agency’s petition for review. See
5 C.F.R. § 1201.114 (e). However, we need not decide the timeliness issue because we
find that the administrative judge properly dismissed this appeal as withdrawn. Cf.
Rosell v. Department o f Defense , 100 M.S.P.R. 594 , ¶ 5 (2005) (stating that, whe n the
Board clearly lacks jurisdiction over an appeal and the record sug gests that the question
3
¶3 Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and
in the absence of unusual circumstances such as misinformation or new and
material evidence, the B oard will not reinstate an appe al once it has been
withdrawn. Rose v. U.S. Postal Service , 106 M.S.P.R. 611, ¶ 7 (2007) . Although
the Board may relieve an appellant of the consequences of her decision to
withdraw an appeal when the conditions set forth above exist, here the appellant
has not indicated that she wants to reinstate her appeal. Id. Rather, it is the
agency that seeks to have the withdrawn appeal reinstated. PFR File, Tab 1.
¶4 The Board’s regulations specify that only an appellant, her designated
representative, or a party properly substituted may file an appeal. 5 C.F.R.
§ 1201.24 (a); Goode v. Department of the Navy , 93 M.S.P.R. 122 , ¶ 6 (2002).
This is consistent w ith the statutory language, which provides that “[a]n
employee, or applicant for employment, may submit an appeal to the Merit
Systems Protection Board from any action which is appealable to the Board under
any law, rule, or regulation. ” 5 U.S.C. § 7701 (a). Furthermore, the Board has
held that it may dismiss an appeal as withdrawn based on the appellant’s request,
despite the agency’s objections. Kravitz v. Office of Personnel Management ,
75 M.S.P.R. 44, 47-48 (1997). Because only an appellant may file an appeal and
the appellant may withdraw her appeal over the agency’s objections, we find the
agency’s petition for review unavailing .3
of timeliness is close, the better practice is to address the jurisdictional issue and
dismiss the appeal on that ground), aff’d , 191 F. App’x 954 (Fed. Cir. 2006).
3 We appreciate the agency’s candor in admitting that it provided the appellant
inaccurate information. According to the agency, it had represented to the
administrative judge that the appellant’s termination during her probationary period had
not been effe cted, when in fact it had. PFR File, Tab 1, at 5. Although the appellant
was placed into a new job, the agency states that its effective date of hire occurred
about a month and a half after the effective date of the appellant’s probationary period
termin ation. Id. Although the agency does not explicitly so state in its petition for
review , it appears that this would cause the appellant to have a break in service. The
agency, of course, may choose to cure its misrepresentation by correcting the
appellan t’s personnel records, if it has not already done so. The appellant has shown no
4
¶5 Accordingly, we deny the agency’s petition for review.
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 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).
indication in the last several years that she wishes to pursue her appeal based upon the
agency ’s misrepresentations. However, the Board may at any time reopen any appeal in
whic h it has issued a final order. 5 C.F.R. § 1201.118 . The Board will exercise its
discretion to reopen an appeal only in unusual or extraordinary circumstances and
generally within a short period of time after the decision becomes final. Id.
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repres entation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S. C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, w hich can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Co mmission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calend ar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with th e EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commissi on
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this deci sion.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 Rev iew Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other cir cuit court 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 p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WHETTEN_HERNANDEZ_ANGELA_DAWN_DE_3443_16_0457_I_1_FINAL_ORDER_2025149.pdf | 2023-04-25 | null | DE-3443 | NP |
3,236 | https://www.mspb.gov/decisions/nonprecedential/TATSIS_KONSTANTINA_CB_7121_16_0003_V_1_FINAL_ORDER_2024475.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KONSTANTINA TATSIS,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
CB-7121 -16-0003 -V-1
DATE: April 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rushab Sanghvi , Esquire, Washington, D.C., for the appellant.
Lawrence E. McDermott , Esquire, and Patricia McGarvey Knebels ,
Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Me mber
FINAL ORDER
¶1 Pursuant to 5 U.S.C. § 7121 (d), the appellant requested review of an
arbitrator’s decision denying her grievance challenging her removal. For the
reasons set forth below, we DISMISS the request for review as se ttled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 On August 9, 2022, the Board issued an Order forwarding the case to the
administrative judge to make additional recommended findings consistent with
the U.S. Court of Appeals for the Federal Circuit’s decision in Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). Tatsis v.
Department of Housing and Urban Development , MSPB Docket No. CB -7121 -
16-0003 -V-1, Order, ¶ 10 (Aug . 9, 2022). While this case was pending in front
of the administrative judge , the parties submitted a document entitled
“GENERAL RELEASE AND SETTLEMENT AGREEMENT,” signed and dated
by the agency on November 28, 2022, and by the appellant on December 2, 2022 .
Tatsis v. Department of Housing and Urban Development , MSPB Docket No.
CB-7121 -16-0003 -H-2, Remand Record File (H -2 RRF), Tab 18 at 9-13. The
document provides, among other things, that the appellant would withdraw with
prejudice the above -captioned appeal in exchange for promises made by the
agency . Id. at 11. Accordingly , the administrative judge recommended that the
Board dismiss the case as settled , and enter the settlement ag reement into the
record for enforcement purposes . Tatsis v. Department of Housing and Urban
Development , MSPB Docket No. CB -7121 -16-0003 -H-2, Recommended Decision
at 3-4 (Dec. 28, 2022) .
¶3 Before dismissing a matter as settled, the Board must decide wheth er 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 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
3
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 parti es 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. H-2 RRF , Tab 18. Accordingly, we find that
dismissing the request for review with prejudice to ref iling (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 enfor cement
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 th e 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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.
5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repr esentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. 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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired 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 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.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial 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 | TATSIS_KONSTANTINA_CB_7121_16_0003_V_1_FINAL_ORDER_2024475.pdf | 2023-04-24 | null | CB-7121 | NP |
3,237 | https://www.mspb.gov/decisions/nonprecedential/PATTERSON_FREDERICK_G_CH_3443_19_0261_I_1_FINAL_ORDER_2024651.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FREDERICK G. PATTERS ON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER S
CH-3443 -19-0261 -I-1
CH-1221 -20-0162 -C-1
CH-1221 -20-0162 -W-1
CH-3443 -19-0438 -C-1
CH-3443 -19-0438 -I-2
DATE: APRIL 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frederick G. Patterson , Troy, Illinois, pro se.
Sarah I. Grafton , Esquire, Arlington, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of five initial decision s. Patterson v.
Department of Homeland Security , MSPB Docket No. CH -3443 -19-0261 -I-1, Petition
for Review ( 0261 -I-1 PFR) File, Tab 1 ; Patterson v. Department of Homeland Security ,
MSPB Docket No. CH -1221 -20-0162 -C-1, Petition for Review File, Tab 1 ; Patterson v.
Department of Homeland Security , MSPB Docket No. CH -1221 -20-0162 -W-1, Petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
for Review File, Tab 1 ; Patterson v. Department of Homeland Security , MSPB Docket
No. CH -3443 -19-0438 -C-1, Petition for Review File, Tab 1 ; Patterson v. Department
of Homeland Security , MSPB Docket No. CH -3443 -19-0438 -I-2, Petition for Review
File, Tab 1 . We JOIN these appeals.2 For the reasons set forth below, we
DISMISS the appeal s as settled.
¶2 After the appellant filed his petition s for review in these five cases , the
parties submitted a document entitled “S ettlement Agreement and Release ”
signed by the appellant on February 17, 2023, and by the agency on February 21
and 22, 2023 . 0261 -I-1 PFR File, Tab 8 at 8. The document provides, among
other things, for the withdrawal of the above -captioned appeal s. 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 unde rstand 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 voluntarily entered into a settlement
agreement, understand its terms, and intend for the agreement to be entered into
the record for enforcement by the Board. 0261 -I-1 PFR File, Tab 8 at 4-5.
Further, it appears lawful on its face. Id. at 4-8. Accordi ngly, we find that
dismissing the appeal s with prejudice to refiling (i.e., the parties normally may
not refile th ese appeal s) is appropriate under these circumstances.
2 The parties have filed the settlement agreement in each of the five appeals. See, e.g. ,
0261 -I-1 PFR File, Tab 8 at 4. Joinder of two or more appeals filed by the same
appellant is appropriate when doing so would expedite processing of the cases and not
adversely impact the interests of the parties. Tarr v. Department of Veterans Affairs ,
115 M.S.P.R. 216 , ¶ 9 (2010); 5 C.F.R. § 1201.36 (a)(2), (b). We find that these five
appeals meet this criterion , and therefore we join them .
3
¶5 This is the final decision of the Merit Systems Protection Board in these
appeal s. 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 carri ed 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 reaso ns 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 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 do es not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which optio n is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, y ou must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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 E EOC 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 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.4 The court of appeals must receive your pet ition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appe als of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for i nformation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/Co urtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PATTERSON_FREDERICK_G_CH_3443_19_0261_I_1_FINAL_ORDER_2024651.pdf | 2023-04-24 | null | S | NP |
3,238 | https://www.mspb.gov/decisions/nonprecedential/BROWN_KEVIN_NY_0752_17_0108_I_1_FINAL_ORDER_2023988.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN BROWN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -17-0108 -I-1
DATE: April 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Brown , Bronx, New York, pro se.
Christopher P. Richins , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appe llant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension. On petition for review, the appellant argues
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
that the administrative judge improperly imposed sanctions that dismissed his
affirmative defenses as aba ndoned. He also argues that the administrative judge
erred in finding that the agency established that it had reasonable cause to believe
that he had committed a crime for which a term of imprisonment could be
imposed. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for re view. Except as expressly MODIFIED to
clarify the reasonable cause analysis , we AFFIRM the initial decision.
¶2 The appellant challenges the imposition of sanctions, claiming that he failed
to comply with the administrative judge’s orders due to technica l difficulties with
e-Appeal Online. Even if the appellant experienced the technical difficulties he
describes, however, he has not explained how these alleged difficulties prevented
him from complying with her orders. Significantly, the appellant succes sfully
uploaded a pleading in response to the show cause orders on May 9, 2017, and the
administrative judge considered this pleading prior to dismissing his affirmative
defenses. Initial Appeal File (IAF), Tabs 9 -10. The appellant has not explained
how his alleged technical difficulties with e -Appeal Online prevented him in any
way from substantively responding to the administrative judge’s show cause
orders in his successfully uploaded pleading, and he did not mention these alleged
3
difficulties at the t ime he filed the pleading. Moreover, the administrative
judge’s first show cause order contained an explicit warning that a failure to
substantively respond to her order with the requested information could result in
the dismissal of his affirmative defen ses as abandoned. IAF, Tab 7. Under these
circumstances, we find no abuse of discretion. See Heckman v. Department of the
Interior , 106 M.S.P.R. 210 , ¶ 16 (2007) (finding that the administrative judge did
not abuse her discretion by dismissing the appellant’s aff irmative defenses for
failure to prosecute when the appellant did not comply with multiple orders over
a period of 2 1/2 months).
¶3 As to the appellant’s challenge to the administrative judge’s finding that the
agency established that it had reasonable cause to believe that he had committed a
crime for which a term of imprisonment could be imposed, we modify the initial
decision as follows, still concluding that the agency met its burden. In the initial
decision, the administrative judge based her conclusion that the agency
established reasonable cause largely on the fact that the appellant was arrested
and arraigned on several criminal charges , one of which was punishable by
imprisonment up to 7 years . IAF, Tab 24, Initial Decision at 6 -7. However,
relying on an arrest and arraignment alone is insufficient to establish reasonable
cause in the context of an indefinite suspension . See B arresi v. U.S. Postal
Service , 65 M.S.P.R. 656 , 662 -63, 666 (1994). Rather, t he agency must take
some affirmative action on its own to satisfy itself that there was reasonable
cause to believe that a crime was committed for which imprisonment could be
imposed . Id. at 666 ( citing Dunnington v. Department of Justice , 956 F.2d 1151
(Fed. Cir. 1992)).
¶4 Here , the record demonstrates that the agency conducted its own
investigation of the appellant’s conduct that led to his arrest and arraignment and
that it considered this evidence in proposing and sustaining the appellant’s
indefin ite suspension. In reaching his decision to sustain the indefinite
suspension, the deciding official considered the materials contained in the
4
eviden ce file . IAF, Tab 6, Subtab 4c at 1. In addition to evidence related to the
appellant’s arrest and arraignment, the materials included a sworn statement from
the agency’s own Criminal Investigator summarizing his investigation of the
appellant’s alleged conduct, including statements from several witnesses, a
confession from the appellant’s alleged coconspirator that implicated the
appellant, and a description of video footage that subs tantiated the confession.
IAF, Tab 6, Subtab 4e. At the hearing, t he deciding official testified that he read
the Criminal Investigator’s report and the witness statements included in the
report. Hearing Recording (testimony of the deciding official ). He further
testified that he believed that the statements from the witnesses interviewed by
the Criminal Investigator were reliable , including the confession from the
appellant’s alleged coconspirator. Id. He concluded , based on all the evidence
presente d to him, that there was reasonable cause to believe that the appellant had
committed the crimes for which he was arrest ed and arraign ed and for which a
term of imprisonment could be imposed . Id. Under the se circumstances, we find
that the agency’s consi deration of the appellant’s arrest and arraignment, in
conjunction with the results of its own investigation , is sufficient to establish
reasonable cause . See Dunnington , 956 F.2d at 1156 -58 (finding the reasonable
cause standard met when , in addition to four arrest warrants, the agency
considered factual material culled from four criminal complaints and statements
from complaining witnesses supporting the criminal complaints ). Accordingly,
we deny the petition for review.
NOTICE OF APPEA L 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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
review of this final dec ision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights des cribed below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one app lies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
6
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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 representative receives this decision before
you do, then you must file with the district court no later than 30 calendar d ays
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below :
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination clai ms only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D .C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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
8
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 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.
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.
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 | BROWN_KEVIN_NY_0752_17_0108_I_1_FINAL_ORDER_2023988.pdf | 2023-04-21 | null | NY-0752 | NP |
3,239 | https://www.mspb.gov/decisions/nonprecedential/HALL_ROSETTA_M_CH_4324_17_0097_I_1_FINAL_ORDER_2024083.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSETTA M. HALL,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-4324 -17-0097 -I-1
DATE: April 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta M. Hall , Florissant, Missouri, pro se.
Patricia Del Vecchio , Saint Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The app ellant has filed a petition for review of the initial decision, which
found that she failed to make a prima facie case that the agency discriminated
against her based on her military service and denied he r request for corrective
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
action . Generally, we gran t petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUMEN TS ON REVIEW
The appellant’s assertions of discovery and adjudicatory error are unavailing.
¶2 In her petition for review, the appellant alleges that the agency was not
responsive to her interrogatories and requests for documents during di scovery.
Petition for Review (PFR) File, Tab 1 at 5 -7. She also asserts that the
administrative judge did not allow her to present evidence regarding two
additional nonselections, id. at 4, improperly denied her a witness, id. at 9, and
improperly heard evidence through a telephonic hearing, id. at 7. She contends
further that the vacancy announcements do not describe how the rating procedures
are used to help determine the best qualified candidates or how veterans are to
apply for special hiring authori ties and disagrees with the agency’s scoring and
ranking methods. Id. at 14 -22.
¶3 The appellant filed a motion to compel below , asserting that the agency ha d
failed to produce fully responsive answers to her discovery requests, despite its
3
obligation to d o so and her good faith attempts to resolve this matter. Initial
Appeal File (IAF) , Tab 11. The administrative judge granted the motion in part,
ordering the agency to respond to some requests for admissions, to provide the
appellant access to her electr onic official personnel folder, and to respond in
detail to specific interrogatories. IAF, Tab 19. Nothing in the record suggests
that the parties continued to have disputes regarding discovery after the
administrative judge issued that order. The appel lant filed no further objection s
stating what, if any, discovery she still had not received . Additionally, in the
summary of prehearing c onference , the administrative judge stated that t he parties
report no outstanding discovery issues. IAF, Tab 27 at 6.
¶4 The s ummary of the prehearing c onference also identified the five positions
at issue , the approve d and disapproved witnesses, and the issues to be
adjudicated ; it additionally specified that the hearing would be telephonic . Id. at
1-3, 5 -7. The administrative judge further stated that any objections to the
summary must be filed in writing within 7 days of the order. Id. at 7. The
appellant did not timely object to the summary, and her failure to do so precludes
her from raising on review any objection regarding discovery, vacancies to be
addressed in the initial decision, denial of witnesses, and the method of
conducting the hearing. See McCarthy v. International Boundary and Water
Commission , 116 M.S.P.R. 594 , ¶ 25 (2011) ( finding that the appellant ’s failure
to timely object to rulings during the hearing precludes her from doing so on
petition for review), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); Tarpley v. U.S.
Postal Service , 37 M.S.P.R. 579 , 581 (1988) ( stating that the appellant ’s failure
to tim ely object to the administrative judge ’s rulings on witnesses precludes her
from doing so on petition for review).
The administrative judge properly denied the appellant’s request for corrective
action.
¶5 The appellant’s petition for review generally challe nges the administrative
judge ’s findings that the appellant failed to prove a violation of the Uniformed
4
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301-4335). We have considered the appellant ’s
challenge to these findings , and because we discern no error in the administrative
judge ’s initial decision regarding these matters, we will not disturb them . 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 whe n she considered the evidence
as a whole, drew appropriate references, and made reasoned conclusions); see
also Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 ,
359 (1987) (same).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 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.
3 On June 18, 2018, the appellant filed a “Motion to Accept Additional Information .”
PFR File, Tab 6. The appellant has not shown that the additional evidence that she
seeks to submit is of sufficient weight to warrant an outcome different from that of the
initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980).
Thus, we deny the appellant’s motion.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revi ew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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:
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 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.5 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).
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 r eprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If 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/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HALL_ROSETTA_M_CH_4324_17_0097_I_1_FINAL_ORDER_2024083.pdf | 2023-04-21 | null | CH-4324 | NP |
3,240 | https://www.mspb.gov/decisions/nonprecedential/SANDERS_LISA_NY_3443_21_0087_I_1_FINAL_ORDER_2024085.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA SANDERS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-3443 -21-0087 -I-1
DATE: April 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa Sanders , New York, New York, pro se.
Jack P. Di Teodoro , Esquire, Brooklyn, New York, 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 review, the parties submitted a document
entitled “S ettlement Agreement ” signed and dated by the appellant on March 27 ,
2023, and by the agency on March 29 , 2023 . PFR File, Tab 4. The document
provides, among other things, that the appellant “ agrees to waive any and all
actions, claims, complaints, grievances, appeals and proceedings of whatever
nature against [the] VA” based on events that occurred prior to the execution of
the settlement agreement and that the agency “may submit th [e] settlement
agreement as evidence of withdrawal or waiver of any claims .” Id. at 4.
¶3 Before dismissing a matter as settled, th e 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 enter ed into a settlement agreement and
understand its terms ; however, because the agreement indicates that the Equal
Employment Opportunity Commission has enforcement authority, we find that
the parties do not intend for the agreement to be entered into the record for
enforcement by the Board . PFR File, Tab 4 at 4 -7. As the parties do not intend
for the Board to enforce the settlement agreement, we need not address t he
additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement.
¶5 In light of the foregoing , we find that dismissing the petition for review
with prejudice to refiling (i.e., the parties n ormally may not refile this appeal) is
appropriate under these circumstances.
3
¶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 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 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).
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 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 informati on about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono r epresentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revi ew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If s o, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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) and 29 U.S.C. § 794a .
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
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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
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 | SANDERS_LISA_NY_3443_21_0087_I_1_FINAL_ORDER_2024085.pdf | 2023-04-21 | null | NY-3443 | NP |
3,241 | https://www.mspb.gov/decisions/nonprecedential/JAMES_WILLIE_CH_0714_19_0511_I_1_FINAL_ORDER_2024089.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIE JAMES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0714 -19-0511 -I-1
DATE: April 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Claire Ocana , Esquire, and McRae Cleaveland , Esquire, Dallas, Texas, for
the appellant.
Jasmine V. Hernandez , Esquire, and Timothy B. Morgan , Esquire, Hines,
Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairm an
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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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, on March 29, 2023, the parties
submitted a document entitled “SETTLEMENT AGREEMENT ,” which was
executed by both parties on March 28, 2023 . Petition for Review (PFR) File,
Tab 6 at 4 -8. Thereafter, on March 30, 2023, the parties resubmitted the
agreement.2 PFR File, Tab 7 at 4-8. The document provides, among other
things, for the withdrawal of the appeal with prejudice . 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 enforcement by the Board. PFR File, Tab 7 at 6 -7. Accordingly, we find that
dismissing the appeal with prejudi ce to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
2 Initially, the settlement agreement indicated that it would be enforceable by both the
Equal Employment Opportunity Commission and the Board. PFR File, Tab 6 at 7. The
resubmitted settlement agreement indicate s that it is enforceable by the Board only .
PFR File, Tab 7 at 7.
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcemen t with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
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 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. Fa ilure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial deci sion in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order mus t file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
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 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mus t be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices 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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to 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 f or judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petition s for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 2 6, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JAMES_WILLIE_CH_0714_19_0511_I_1_FINAL_ORDER_2024089.pdf | 2023-04-21 | null | CH-0714 | NP |
3,242 | https://www.mspb.gov/decisions/nonprecedential/TRENT_DUANE_S_DC_0752_20_0679_I_2_FINAL_ORDER_2024094.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DUANE S. TRENT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -20-0679 -I-2
DATE: April 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert E. Lum , Brooklyn, New York, for the appellant.
Keith Reid , Esquire, Piscataway, New Jersey, for the appellant.
Roderick D. Eves , Esquire, St. Louis, Missouri , 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 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings o f material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initia l decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we con clude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the agency did not commit harmful procedural error , we
AFFIRM the initial decision.
¶2 On review, the appellant asserts that the agency violated his due process
rights when the proposing official considered a memorandum from the Director of
Human Resources summarizing the findings of the investigation int o the
appellant’s misconduct, when the deciding official considered handwritten notes
prepared by the investigator, and when the deciding official allegedly failed to
investigate the appellant’s allegation that he was framed. Petition for Review
File (PFR ) File, Ta b 1 at 7-10. For the reasons stated in the initial decision, we
agree with the administrative judge that the proposing official’s consideration of
the memorandum and the deciding official’s consideration of the handwritten
notes do not violate t he appellant’s right to minimum due process. Trent v. U.S.
Postal Service , MSPB Docket No. DC -0752 -20-0679 -I-2, Refiled Appeal File ,
Tab 12 , Initial Decision (ID) at 12 -15. The administrative judge also considered
3
the appellant’s assertion that he was fr amed, albeit not in the context of a due
process violation, and found that the appellant’s theory was not credible in light
of the record evidence. ID at 18. Further, t he record shows that the agency
investigated whether the individual who reported the a ppellant’s misconduct to
management was biased , and th erefore , the appellant’s claim to the contrary is
unsupported by the evidence. Trent v. U.S. Postal Service , MSPB Docket No.
DC-0752 -20-0679 -I-1, Initial Appeal File, Tab 4 at 58-59, 83. In any event, the
appellant responded to the proposed removal orally and in writing and he was free
to put on evidence supporting his theory that he was framed. Therefore, the
agency provided the appellant with minimum due process . Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985) (stating that a public
employee has a constitutional right to respond, either orally or in writing, to an
appealable agency action that de prives him of his property right in employment).
¶3 Although the appellant has not proved that the agency violated his due
process rights, we must still analyze whether the agency committed harmful
procedural error. See Stone v. Federal Deposit Insurance Co rporation , 179 F.3d
1368 , 1377 -78 (Fed. Cir. 1999) (stating that, in addition to the protections
afforded by the Constitution, public employee s also are entitled to whatever o ther
procedural protections are afforded them by statute, regulation, or agency
procedure). To prove harmful error, the appellant must show bot h that the agency
committed procedural error and that the error was harmful. Rogers v. Department
of Defense , 122 M.S.P.R. 671 , ¶ 7 (2015). Regarding his inadequate investigation
claim, we find that the appellant has not identified any statute, regulation, or
agency procedure that would require the agency to investigate his allegations , and
he has failed to meet his burden to show that the agency likely would have
reached a different conclusion if some additional procedure was followed. See
Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681 (1991). Regarding
the proposing official’s consideration of the memorandum and the deciding
official’s consideration of the handwritten notes, we modify the initial decision to
4
find that any procedural error was harmless because the information considered
was merely cumulative and was a lready known to the appellant at the time he
made his oral and written replies to the proposed removal . ID at 12 -15.
¶4 Finally, we acknowledge that, on review, the appellant states that his
removal is a prohibited personnel practice, cites to several case s explaining
confrontation and cross -examination, and quotes portions of the Board’s
regulation on sanctions . PFR File, Tab 1 at 4, 11 -12. We find that the appellant
has not explained with sufficient detail why review is warranted on these bases ,
and we find no reason to disturb the findings of the initial decision . See Tines v.
Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992) (st ating that a petition
for review must contain sufficient specificity to enable the Board to ascertain
whether there is a serious evidentiary challenge justifying a complete review of
the record). The appellant’s remaining arguments are challenges to the
administrative judge’s weighing of the evidence and credibility determinations.
Mere disagreement with the administrative judge’s reasoned and supported
findings and credibility determinations, like those raised in the appellant’s
petition for review, will not warrant disturbing the initial decision, and we find no
basis to do so here. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 9 8, 106
(1997); Broughton v. Department of Health and Human Services , 33 M.S.P.R.
357, 359 (1987).
¶5 Based on the foregoing, we deny the petition for review and affirm the
initial decision.
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
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.
Please read carefully each of the three main possible choices of review
below to decide which one applies 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. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is avai lable at the court’s website, www.cafc.uscourts.gov. Of particular
6
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in secu ring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option appl ies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a dis position of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 h ave a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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
8
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
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
Contact information for the courts of appeals can be 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 | TRENT_DUANE_S_DC_0752_20_0679_I_2_FINAL_ORDER_2024094.pdf | 2023-04-21 | null | DC-0752 | NP |
3,243 | https://www.mspb.gov/decisions/nonprecedential/WEISMAN_ANDREA_R_DC_0752_17_0274_I_1_FINAL_ORDER_2023589.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREA R. WEISMAN,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DC-0752 -17-0274 -I-1
DATE: April 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrea R. Weisman , North C hesterfield, Virginia, pro se.
Ted Booth , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not av ailable when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 May 26, 2015, the appellant resigned from her position as a GS -13
Clinical Psychologist at the B ureau of Prisons, Federal Correctional Complex in
Petersburg, Virginia. Initial Appeal File (IAF), Tab 9 at 9. In her resignation
letter, she indicated that she was resigning “as a result of health concerns due to
ongoing harassment, bu llying by [her] su pervisor, . . . and lack of protection from
anyone in the administration. ” IAF, Tab 7 at 50. After receiving a January 3,
2017 final agency decision finding , among other things, that the agency did not
constructively discharge her in retaliation for prot ected activity, the appellant
timely filed the instant Board appeal and requested a hearing . Id. at 28-41; IAF,
Tab 1.
¶3 The administrative judge issued a jurisdictional order informing the
appellant that the Board lacks jurisdiction over voluntary action s, such as
resignations, and directing her to submit evidence and argument amounting to a
nonfrivolous allegation that her retirement was involuntary because of duress,
coercion, or misrepresentation by the agency . IAF, Tab 3 at 2-3. In response, the
appellant alleged that individuals in her chain of command discriminated and
3
retaliated against her for prior equal employment opportunity (EEO) activity and
subjected her to intolerable working conditions that forced her to resign . IAF,
Tab 5 at 3 , Tab 6 at 3. The agency moved to dismiss the appeal for lack of
jurisdiction. IAF, Tab 8.
¶4 In an initial decision, t he administrative judge found that the appellant
failed to nonfrivolously allege that her resignation was involuntary. IAF, Tab 10,
Initial Decis ion (ID) at 5 -10. Therefore, she denied her request for a hearing and
dismissed the appeal for lack of jurisdiction. ID at 10-11. The appellant has filed
a petition for review of the initial decision, and the agency has responded in
opposition. Petitio n for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Generally, the Board lacks the authority to review an employee’s decision
to resign, which is presumed to be a voluntary act. Brown v. U.S. Postal Service ,
115 M.S.P.R. 609 , ¶ 9, aff’d , 469 F. App’x 852 (Fed. Cir. 2011). An involuntary
resignation, however, is tantamount to a removal and is therefore subject to the
Board’ s jurisdiction. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 ,
¶ 17 (2007). A n employee may overcome the presumption of voluntariness by
showing that her resignation was the product of misinformation or deception by
the agency, or of coercive acts by the agency, such as intolerable working
conditions or the unjustified threat of an adv erse action. SanSoucie v.
Department of Agriculture , 116 M.S.P.R. 149 , ¶ 14 (2011). If the employee
makes a nonfrivolous allegation of jurisdiction, i.e., an allegation that, if proven,
could establish the Board’s jurisdiction, she is entitled to a hearing at which she
must prove jurisdiction by a preponderance of the evidence.2 Vitale ,
107 M.S.P.R. 501 , ¶ 18.
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4
¶6 When, as here, an employee allege s that intolerable working conditions
forced her to resign , the Board will find her resignation involuntary only if she
demonstrates that the agency engaged in a course of action that made working
conditions so difficult or unpleasant that a reasonable person in her position
would have felt compelled to resign . Id., ¶ 20. The doctrine of coerced
involuntarines s is “a narrow one” and does not apply if the employee resigns
because she “does not want to accept [measures] that the agency is authorized to
adopt, even if those measures make continuation in the job so unpleasant . . . that
[she] feels that [she] has n o realistic option but to leave.” Staats v. U.S. Postal
Service , 99 F.3d 1120 , 1124 ( Fed. Cir. 1996). The touchstone of the
“voluntariness” ana lysis is whether, considering the totality of the circumstances,
factors operated on the employee’s decision -making process that deprived her of
freedom of choice. Vitale , 107 M.S.P.R. 501 , ¶ 19.
¶7 Here, in a formal EEO complaint , the appellant alleged that, fro m
November 19, 2014, to January 23, 2015, management officials subjected her to
harassment and verbal abuse, denied her reque st for an EEO representative during
meetings , and issued her a letter of counseling in retaliation for her prior EEO
activity, reporting staff misconduct and violations of law, and “speaking up after
being mistreated.” IAF, Tab 7 at 55-58. The appellant later amended her
complaint to include allegations t hat, in February 2015, she became aware that
her second -level supervisor would be reviewing all of her work. Id. at 52. She
subsequently submitted another amendment, alleging that, on March 27, 2015 , she
was ordered to stay past her duty hours, and her supervisor challenged her
complete work assignments, personally attacked her work integrity, and accused
her of violating boundaries . Id. at 53. After the appellant resigned, she again
amended her EEO c omplaint, alleging that she felt threatened when alone with
her supervisor and that “ongoing harassment, bullying by [her] supervisor and
lack of protection from the administration” forced her to resign. Id. at 47.
5
¶8 In addition, i n response to the administ rative judge’s order on jurisdiction ,
the appellant alleged that the following agency actions created intolerable
working conditions: (1) management treated her differently than her coworkers ;
(2) management moved her from the psychology department to an inmate unit ;
(3) management did not allow her to supervise an intern; (4) her supervisor and
the chief of her department harassed her; (5) she did not receive an outstanding
rating on her performance evaluation ; (6) a coworker harassed and physically
struc k her before being escorted out of the building; (7 ) the Special Investigative
Supervisor and Office of Internal Affairs eac h filed a “case” against her; (8 ) her
supervisor sent her harassing emails on a daily basis and entered her office
throughout the da y to talk about her performance; (9 ) she was “blamed for the
suicide of an inmate [she] was helping”; (10 ) management made “slanderous and
retaliatory” claims about her and questioned her ethics; (11 ) her “files were
reviewed and not relea sed in a timely m anner”; and (12 ) management denied her
request for representation during meetings. IAF, Tab 5 at 3.
¶9 In the initial decision, the administrative judge found that the appellant’s
stated reasons for resigning —allegations of a stressful work environment,
increase d scrutiny, and unfair assignments —were insufficient as a matter of law
to es tablish involuntariness. ID at 8. She further found that the appellant’s
unsupported allegation that a coworker harassed her and physical ly struck her was
insufficient t o establish a nonfrivo lous all egation of jurisdiction. ID at 8-9. The
administrative judge also found that the investigation of the appellant in
connection with her former patient’s suicide did not render her resignation
involuntary. ID at 10. Lastly, the administrati ve judge found that, when the
appellant resigned, she was pursuing her retaliation complaints through the EEO
process and that she had a viable option to remain in her position and fight the
alleged harassment and retaliation through that p rocess rather than resign. Id.
Thus, the administrative judge concluded that the appellant failed to
nonfrivolously allege that her resignation was involuntary. ID at 10 -11.
6
¶10 On review, the appellant does not identify any particular error in the initial
decision but argues again that the agency subjected her to intolerable working
conditions that forced her to resign and that its coercive actions were retaliatory
and discriminatory.3 PFR File, Tab 1. The appellant’s mere disagreement with
the administra tive judge’s well -reasoned finding s provide s no basis to disturb the
initial decision. See Davison v. Department of Veterans Affairs , 115 M.S.P.R.
640, ¶ 9 (2011) . We agree with the administrative judge’s determination that the
appellant failed to nonfrivolously allege that the agency coerced her resignation
through intolerable working conditions.
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. § 77 03(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
stateme nt of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Although the appellant reiterates many of her allegations from below, she does not
renew her contention that the agency created intolerable working condit ions when a
coworker “harassed and physically struck” her. PFR File, Tab 1. We have reviewed
the record and agree with the administrative judge’s determination that the appellant ’s
unsupported allegation of harassment and physical assault by an unspecifi ed coworker
at an unspecified time is insufficient to constitute a nonfrivolous allegation of
involuntariness. ID at 8 -10; see Marcino v. U.S. Postal Service , 344 F.3d 1199 , 1204
(Fed. Cir. 2003) (stating that “unsubstantial speculation in a pleading ,” unsupported by
affidavits or other evidence , does not constitute a nonfrivolous allegation).
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
filing time limits and requirement s. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you h ave questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.go v/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representatio n in a given case.
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 an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the F ederal Circuit), within 30 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 accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative 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.5 The court of appeals must receive your
petition for review within 60 days of th e date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | WEISMAN_ANDREA_R_DC_0752_17_0274_I_1_FINAL_ORDER_2023589.pdf | 2023-04-20 | null | DC-0752 | NP |
3,244 | https://www.mspb.gov/decisions/nonprecedential/GODSHALL_MARK_DE_0752_19_0186_I_1_FINAL_ORDER_2023663.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK GODSHALL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DE-0752 -19-0186 -I-1
DATE: April 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Godshall , Albuquerque, New Mexico, for the appellant.
Michele L. Kenney , San Diego, California, 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 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 distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appellant submitted , among
other things, a document entitled “SETTLEMENT AGREEMENT” signed and
dated by the appellant on February 3, 2023, and by the appellant’s representative
and the agency on February 6, 2023 . PFR File, Tab 6 at 6 -13. The document
provides that the appellant “agrees to withdraw, with prejudice, any and all
existing actions against the [a]gency that he may have pending before ,” among
other entities, the Board. Id. at 6-7.
¶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 do not intend for the agreement to be entered into the
record for enforcement by the Board . PFR File, Tab 4 at 5, Tab 6 at 8 -9. As the
parties do not intend for the Board to enforce the settlement agreement, we need
not address the additional considerations regarding enforcement, and we do not
enter the settlement agreement into the record for enforcement by the Board.
¶5 In light of th e foregoing , 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.
¶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 ).
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 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
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 petit ion 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 decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided 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 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
Contact information for the courts of appeals can be 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 | GODSHALL_MARK_DE_0752_19_0186_I_1_FINAL_ORDER_2023663.pdf | 2023-04-20 | null | DE-0752 | NP |
3,245 | https://www.mspb.gov/decisions/nonprecedential/WINEY_TIMOTHY_DC_1221_17_0011_W_1_FINAL_ORDER_2023676.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY WINEY,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -17-0011 -W-1
DATE: April 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Winey , Suffolk, United Kingdom, pro se.
Schwanda Rountree , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal on collateral estoppel
grounds. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findin gs of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the in itial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligen ce, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 dismiss the appeal for lack of jurisd iction without addressing
the issue of collateral estoppel, we AFFIRM the initial decision.2
¶2 The appellant filed an IRA appeal in which he contended that the agency
removed him from his position in retaliation for alleged whistleblowing. Initial
Appeal File (IAF), Tab 1. The administrative judge informed the appellant that
he had the burden of establishing jurisdiction over his appeal, and she provided
him with notice of what he must show to establish jurisdiction. IAF, Tab 3. The
administrative judge also issued a show cause order in which she directed the
appellant to show why his appeal should not be dismissed on the basis of
collater al estoppel as it appeared that he had raised the identical claim in an
earlier appeal. IAF, Tab 31. After consider ing the parties’ responses, the
administrative judge found that the appeal was barred by collateral estoppel.
IAF, Tab 48, Initial Decision (ID) at 7-9. She further found, in the alternative,
2 The appellant also filed a motion for leave to file additional pleadings. Petition for
Review File, Tab 6. In this motion, the appellant, without specifically identifying what
his additional pleadings are, is simply reiterating the arguments that he ha s already
raised in his petition for review ; that is, that the administrative judge was biased, that
she shou ld have ruled on his motion to compel before dismissing his case, and that he
has been prevented from obtaining documents from the Office of Special Counsel
through discovery. Because all of these arguments are addressed in this decision, the
appellant’s motion for leave to file additional pleadings is denied.
3
that the appellant failed to prove jurisdiction over his appea l because he did not
prove by preponderant evidence that he had exhausted his administrative
remedies with the Office of Special Counsel (OSC). ID at 9-13. The appellant
petitions for review.
¶3 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) h e engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. 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), an appellant must provide OSC with a
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security , 2022 MSPB 8 , ¶¶ 10-11.
¶4 Here, although the appellant filed a complaint with OSC and received a
closure letter, IAF, Tab 7 at 57 -59, he did not submit a copy of his OSC
complaint to the Board . While proof of exhaustion need not be in the form of an
OSC complaint, the burden of proof is on the appellant to establish exhaustion.
Chambers , 2022 MSPB 8 , ¶¶ 10-11. As such, it was incumbent on him to
articulate the substance of the disclosures that he made to OSC . The
administrative judge ordered the appellant to identify his protected discl osure, the
date of the disclosure , to whom it was made, and other pertinent information,
IAF, Tab 3 at 7, but the appellant provided no information about his OSC
complaint and instead raised arguments about the merits of his removal, his
discrimination cla ims, his requests for documents under the Freedom of
Information Act , and other matters not relevant to the outcome of this appeal.
¶5 The appellant asserts on review that OSC stated in its closure letter that he
had exhausted his administrative remedies an d that the administrative judge erred
by finding otherwise. PFR File, Tab 2 at 4-5. The appellant has misinterpreted
OSC’s correspondence . IAF, Tab 1 at 52 -54, Tab 7 at 57 -59. In any event, an
4
IRA appeal before the Board is a de novo proceeding and any decisions that OSC
may have made are not binding on the Board. Mangano v. Department of
Veterans Affairs , 109 M.S.P.R. 658 , ¶ 45 (2008). Moreover, as noted above,
OSC’s closure letter establishes that the appellant filed a complaint about alleged
whistleblowing, but it does not establish what the alleged whistleblowing was,
and it does not establish that he provided OSC with a suf ficient basis to pursue an
investigation which might lead to corrective action.
¶6 The appellant further contends that he was unable to provide copies of his
correspondence with OSC because OSC was not cooperating with his various
requests for documents. PFR File, Tab 2 at 4. Whether the appellant has
satisfied the exhaustion requirement depends on what information he provided to
OSC. The documents he submitted to OSC would normally be in his own custody
and control and his access to them would not depend o n OSC’s response to his
requests for documents. Moreover, the appellant has been attempting to obtain
redress for his removal since 2011, including by filing of several Board appeals,
and has had ample opportunity to gather the documents he needs.
¶7 Finall y, the appellant alleges that the administrative judge was biased and
should have recused herself. Id. at 4-5. In making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators . Oliver v.
Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). The party claiming
bias must show that it constitutes extrajudicial conduct rather than conduct
arising in the administrative proceedings before the administrative judge, and the
fact that the administrative judge ruled against the party, even erroneously, is
insufficient evidence to show bias . Vaughn v. Department of the Treasury ,
119 M.S.P.R. 605 , ¶ 18 (2013) ; Benson v. Office of Personnel Management ,
83 M.S.P.R. 549 , ¶ 7 (1999) . The appellant’s claims of bias are based almost
entirely on the administrative judge ’s rulings in this appeal and in prior appeals
and do not establish extrajudicial conduct warranting a finding of bias.
5
¶8 The appellant’s remaining allegation of bias proceeds from his
representation that he has named the administrative judge as a witness in a
discrimination complaint. H owever, h e has submitted no evidence showing that
the administrative judge has been approved as a witness by an appropriate
authority. At this point, any suggestion that the administrative judge will testify
in any possible hearing that may or may not occ ur in connection with his
discrimination complaint is mere speculation, as is the apparent presumption that
the possibility of testifying necessarily would trigger bias against the appellant.
¶9 Based on the foregoing, we find that the administrative judge correctly
found that the appellant did not show that he exhausted his administrative
remedies with OSC and failed to establish jurisdiction over his IRA appeal. In
light of this disposition, we do not address the administrative judge’s finding that
the ap peal was barred b y the doctrine of collateral estoppel.
¶10 Finally, on March 1, 2018, the appellant filed a pleading titled “Motion to
Waive Jurisdiction.” PFR File, Tab 8. Th e Clerk of the Board issued an o rder
informing the appellant that it appeared that his pleading may constitute a request
to withdraw his petition for review. PFR File, Tab 9. The Clerk ordered the
appellant, if he indeed wished to withdraw his petition for review , to submit a
pleading confirming his request to withdraw his petition fo r review . Id. The
appellant did not respond to the Clerk’s order and we find that he did not intend
to withdraw his petition for review .
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final dec ision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
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
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may resu lt in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court o f Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for re view to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
7
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, a nd Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represent ation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of ca ses involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you m ay obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 acti on involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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 .
8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.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
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
9
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor wa rrants that
any attorney will accept representation in a given case.
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | WINEY_TIMOTHY_DC_1221_17_0011_W_1_FINAL_ORDER_2023676.pdf | 2023-04-20 | null | DC-1221 | NP |
3,246 | https://www.mspb.gov/decisions/nonprecedential/WINEY_TIMOTHY_DC_300A_17_0280_I_1_FINAL_ORDER_2023679.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY WINEY,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-300A -17-0280 -I-1
DATE: April 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Winey , Suffolk, United Kingdom, pro se.
Schwanda Rountree , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for revi ew of the initial decision, which
dismissed for lack of jurisdiction his appeal of an alleged employment practice.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of mat erial fact;
the initial decision is based on an erroneous 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 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 1 201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 n ow the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 During the adjudication of a related individual right of action appeal, the
appellant raised an employment practices claim. The administrative judge
docketed the employment practices claim as a separate appeal. After affording
the appellant an opportunity to establish the Board’s jurisdiction over the appeal
and considering the parties’ responses, the administrative judge issued an initial
decision that dismissed the appeal on the written record without granting the
appellant his requested hearing. Initial Appeal File (IAF), Tabs 2, 22. The
appellant petitions for review of the initial decision. Petition for Review (PFR)
File, Tab 1. The agency has not responded to the petition for review.
¶3 An applicant for employment who believes that an employment practice
applied to h im by the Office of Personnel Management (OPM) violates a basic
requirement in 5 C.F.R. § 300.103 is entitled to appeal to the Board. Sauser v.
Department of Veterans Affairs , 113 M.S.P.R. 403, ¶ 6 (2010); 5 C.F.R.
§ 300.104 (a). The Board has jurisdiction under 5 C.F.R. § 300.104 (a) when t wo
conditions are met: First, the appeal must concern an employment practice that
OPM is involved in administering; and second, the appellant must make a
nonfrivolous allegation that the employment practice violated one of the “basic
requirements” for emp loyment practices set forth in 5 C.F.R. § 300.103 . Sauser ,
3
113 M.S.P.R. 403, ¶ 6. “Employment practices,” as defined in OPM’s
regulations, “affect the recruitment, measurement, ranking, and selection” of
applicants for positions in the competitive service. 5 C.F.R. § 300.101 . The
appellant’s concerns are about the agency’s actions while he was employed by the
agency, not questions about how it arrived at its decision to select one candidate
over another. Thus, he has not identified an employment p ractice subject to
review by the Board.
¶4 Second, the appellant has not alleged that an employment practice was
applied to him by OPM, as required by 5 C.F.R. § 300.104 (a), or that a valid
employment practice administered by OPM was misapplied to him by the agency .
Sauser , 113 M.S.P.R. 403 , ¶ 7. In fact, the appellant contends that the agency
implemented a particular training program without obtaining OPM’s approval.
IAF, Tab 7 at 4 . Therefore, the appellant does not even contend that OPM was
involved in the alleged employment practice under appeal.
¶5 Third, the appell ant has not alleged that an employment practice applied to
him violates one of the basic requirements contained in 5 C.F.R. § 300.103 .
Finally, the alleged violations concern matters rel ated to his employment and
termination from employment, not to his status as an applicant for employment
prior to his selection. Only “candidates” may bring employment practices appeals
to the Board under 5 C.F.R. § 300.104 (a). National Treasury Employees Union v.
Office of Personnel Management , 118 M.S.P.R. 83, ¶ 9 (2012). Therefore, the
appellant has not raised a cognizable employment practices claim within the
Board’s jurisdiction.
¶6 On review, the appellant asserts that the agency committed the following
appealable employment practices: it implemented an illegal scheme to train
managers how to remove “vulnerable employees”; the agency and the Office of
Special Counsel obstructed the appellant’s rights under the Freedom of
Information Act (FOIA) ; the deciding official in the appellant’s removal was a
“proven crook” who was removed in part because of the appellant’s protected
4
disclosures; and the appellant was supervised by managers who were being
investigated by the Inspector General pursuant to a complaint that the appellant
initiated. PFR File, Tab 1 at 7. None of these assertions relate to “ the
recruitment, measurement, ranking, and selection” of applicants for positions in
the com petitive service. 5 C.F.R. § 300.101 . Moreover, none of these allegations
overcome the fact that the appellant is pursuing issues that arose when he was an
employee and/or after his sep aration; because only a candidate for employment
can file an employment practices appeal, the appellant’s status as an employee
and later a former employee is fatal to his appeal.
¶7 The remaining more than 280 pages of the appellant’s petition for review
purport to be electronic mails, correspondence, and other documents pertaining to
the appellant’s removal, FOIA requests, and his actions in furtherance of his
litigation against the agency. The appellant has not provided copies of any
original documents. Instead, he appears to have cut -and-paste excerpts of other
documents into the body of his petition for review . There is no way to verify that
any of these insertions are either accurate or complete versions of the documents
they purport to cite and ther efore, they do not constitute evidence. Moreover, it
appears that all of these insertions concern alleged documents that substantially
pre-date the close of the record below, and some of them appear to duplicate
similar pleadings already in the record. T herefore, we need not consider this
portion of the appellant’s petition for review . 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 ); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980) (explaining that, under 5 C.F.R. § 1201.115 , the Board will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the reco rd was clo sed despite the party’ s due diligence ).
¶8 More importantly, none of these insertions appear to involve claims that the
appellant was subjected to “employment practices” as defined in 5 U.S.C.
§ 300. 101 while he was a candidate for employment. The Board will not grant a
5
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision . Russo v.
Veterans Admini stration , 3 M.S.P.R. 345 , 349 (1980). Therefore, even if we were
to consider these insertions, they do not warrant an outcome different from that of
the initial decision .
¶9 The appellant asserts that the administrative judge’s rulings show that she
was biased agains t him. PFR File, Tab 1 at 7. There is a presumption of honesty
and integrity on the part of administrative judges that can only be overcom e by a
substantial showing of personal bias; the Board will not infer bias based on an
administrative judge’s case -related rulings. Vaughn v. Department of the
Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013). The appellant has made no such
showing.
¶10 Finally, on March 1, 2018, the appellant filed a pleading titled “Motion to
Waive Jurisdiction for DC -300A -17-0280 -I-1.” PFR File, Tab 3. The Clerk of
the Board issued an o rder informing the appellant that it appeared that his
pleading may constitute a request to withdraw his petition for review and it
ordered the appellant to submit a pleading confirming his request to withdraw his
petition for review if that was his intent . PFR File, Tab 4. The appellant did not
respond to the Clerk’s order and we find that he did not intend to withdraw his
petition for review.
¶11 Accordingly, we find that the administrative judge correctly dismissed this
employment practices appeal for lack of jurisdiction .
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
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:
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.
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 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
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
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 representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.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 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
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
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 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.
July 7, 2018, permanently allows appellants to file petitions for judicial 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.
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 | WINEY_TIMOTHY_DC_300A_17_0280_I_1_FINAL_ORDER_2023679.pdf | 2023-04-20 | null | DC-300A | NP |
3,247 | https://www.mspb.gov/decisions/nonprecedential/HICKS_TAMMIE_R_DC_531D_19_0151_I_1_FINAL_ORDER_2023688.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAMMIE R. HICKS,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER S
DC-531D -19-0151 -I-1
DC-3443 -18-0790 -I-1
DATE: April 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alexis N. Tsotakos , Esquire, and Christopher H. Bonk , Esquire, Silver
Spring, Maryland, for the appellant.
Christopher Hawthorne , Esquire, Joint Base Andrews, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
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 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 The appellant has filed a petition for review of the initial decision, which
dismissed her reduction -in-pay appeal for lack of jurisdiction and dismissed as
moot her appeal of a denial of a within -grade increase (WIGI) . Generally, w e
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outc ome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in these appeal s, we conclude
that the petitioner has not established any basis under section 1201.115 for
granting the petition for review. Therefore, we DENY the petition for review.
Except as expressly MODIFIED in ¶ 23 below to VACATE the administrative
judge’s findings concerning due process , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS -13, step 4 Human Resources Specialist for the
Department of State, with total salary of $104,275 ($82,402 plus a 27.1%
Washington, D.C. , area locality adjustment of $21,873). Hicks v. Department of
the Air Force , MSPB Docket No. DC -3443 -18-0790 -I-1, Initial Appeal File
(0790 IAF), Tab 5 at 4, 7, 9. On July 23, 2017, th e appellant transferred to a
GS-12, step 10 Human Resources Specialist position with the Department of the
Air Force, the respondent agency in this appeal, at a salary of $93,821 ($81,541
plus a 15.06% rest of United States locality adjustment of $12,280). Id. at 6-8.
Shortly thereafter, the appellant applied and was selected for a promotion to
3
GS-13 Supervisory Human Resources Specialis t. Id. at 13. The agency offered
her the position at GS -13, step 6, with a salary of $100,118 ($87,014 plus a
15.06% locality adjustment of $13,561). Id. at 7-8, 13. The promotion became
effective December 10, 2017. Id. at 15.
¶3 On June 6, 2018, the agency notified the appellant that, during a recent
audit, it discovered a pay-setting error related to he r July 23, 2017 transfer.
0790 IAF, Tab 6 at 4 -6. Specifically, the agency determined that, pursuant to Air
Force Instruction (AFI) 36 -802, Pay Setting, ¶ 1.2.5.3 (Sept . 1, 1998), it should
have set the appellant’s pay upon transfer at GS -12, step 8, instead of GS -12, step
10. Id. at 5. That paragraph provides as follows:
Conversion or Transfer to a Lower Grade . Unless entitled to
grade or pay retention, pay for conversions or transfers to positions
at a lower grade will be set at a step of the lower grade which upon
repromotion will not place the employee in a rate exceeding that
previously held in the higher grade.
0790 IAF, Tab 17 at 37. The agency explained that, because it originally set the
appel lant’s pay upon transfer at GS -12, step 10, when it repromoted her to GS -13,
it was required under the two -step promotion rule of 5 U.S.C. § 5334 (b) to set her
pay at GS -13, step 6, which exceeded the GS -13, step 4 salary that she held
immediately prior to her transfer from the Department of State, thus violating
AFI 36-802, ¶ 1.2.5.3.3 0790 IAF, Tab 6 at 5. The agency informed the appellant
that it would process correction s to the transfer and promotion actions to reflect
the correct pay and that this would result in a debt to the agency for the amount of
salary that she had been overpaid since the time of her transfer. Id. On or about
July 3, 2018, the agency processed corrections retroactively reducing the
appellant’s pay up on transfer from GS-12, step 10 to GS-12, step 8 and he r pay
3 Section 5334(b) of the U .S. Code provides in relevant part as follo ws:
An employee who is promoted or transferred to a position in a higher
grade is entitled to basic pay at the lowest rate of the higher grade which
exceeds his existing rate of basic pay by not less than two step -increases
of the grade from which he is pr omoted or transferred.
4
upon repromotion from GS -13, step 6 to GS -13, step 4. Id. at 6-8. The agency
determined that the appellant had received a total overpayme nt of $2,059.20 as a
result of the pay -setting error, and after accounting for deductions and
adjustments, her remaining debt was $601.43. 0790 IAF, Tab 8 at 7, 10. On
July 21, 2018, the agency issued the appellant a debt collection letter, instructing
her to pay the amount in full by September 1, 2018. Id. at 7-9. On August 29,
2018, the appellant filed a Board appeal challenging her reduction in pay. 0790
IAF, Tab 1. She did not request a hearing. Id. at 2.
¶4 Meanwhile, on July 10, 2018, an agency pe rsonnel official notified the
appellant that her next WIGI was scheduled for July 22, 2018. Hicks v.
Department of the Air Force , MSPB Docket No. DC -531D -19-0151 -I-1, Initial
Appeal File (0151 IAF), Tab 1 at 10. However, despite the appellant’s fully
successful performance, the agency took no action on the WIGI, neither granting
it nor explicitly denying it. Id. at 6. On November 20, 2018, the appellant filed a
Board appeal of the WIGI denial. Id. at 4. She did not request a hearing. Id.
at 2. The a dministrative judge joined the two appeals for processing. 0151 IAF,
Tab 9.
¶5 After the close of the record, the administrative judge issued an initial
decision dismissing the appellant’s reduction -in-pay appeal for lack of
jurisdiction and dismissing her WIGI appeal as moot. 0151 IAF, Tab 14, Initial
Decision (ID). He found that the agency reduced the appellant’s pay to correct a
pay-setting error and that the reduction -in-pay appeal was therefore excluded
from the Board’s jurisdiction under 5 C.F.R. § 752.401 (b)(15). ID at 3 -9. He
also considered the appellant’s argument that the agency effected a debt
collection against her without due process, but he found that the appella nt failed
to prove her claim. ID at 9. Finally, the administrative judge found that the
WIGI appeal was moot because the agency granted her WIGI retroactive to
July 22, 2018. ID at 9 -10.
5
¶6 The appellant has filed a petition for review, disputing the admin istrative
judge’s findings on jurisdiction and due process. Hicks v. Department of the Air
Force , MSPB Docket No. DC -531D -19-0151 -I-1, Petition for Review (PFR) File,
Tab 1. The agency has filed a response in opposition to the petition for review,
and th e appellant has filed a reply to the agency’s response. PFR File, Tabs 3 -4.
During the pendency of the petition for review, the Office of the Clerk of the
Board issued a show cause order, notifying the agency that AFI 36-802 may not
have the force and ef fect of law such that the correction of a pay -setting err or in
violation of the AFI would be excluded from the Board’s jurisdiction. PFR File,
Tab 5. The order informed the agency of the applicable standard and ordered it to
file evidence and argument on the issue. Id. The agency responded to the show
cause order, and the appellant replied to the agency’s response. PFR File, Tabs
6-7.
ANALYSIS
The appeal concerning a WIGI denial is moot.
¶7 The Board’s jurisdiction over an agency action is determined by t he nature
of the action at the time an appeal is filed with the Board, and an agency’s
unilateral modification of its action after an appeal has been filed cannot divest
the Board of jurisdiction unless the appellant consents to such divestiture or
unless the agency completely rescinds the action being appealed. Himmel v.
Department of Justice , 6 M.S.P.R. 484 , 486 (1981). Thus, the Board may dismiss
an appeal as moot if the appealable action is canceled or rescinded by the agency.
In order to render an appeal moot, however, an agency must prove that it
completely rescinded its action, thereby returning the appellant to the status quo
ante and not le aving her in a worse position because of the rescission than she
would have been in if the matter had been adjudicated and she had prevailed.
Fernandez v. Department of Justice , 105 M.S.P.R. 443 , ¶ 5 (2007); Gillespie v.
Department of Defense , 90 M.S.P.R. 327 , ¶ 7 (2001).
6
¶8 In this case, the administrative judge found that the appeal was moot
because the agency granted the appellant’s WIGI retroactive to July 22, 2018,
which was the date that she first became eligible for it, and awarded her back pay
for the int erim period. ID at 9; 0151 IAF, Tab 6 at 9 -10, 14 -17, 19 -28. The
appellant does not dispute the administrative judge’s findings on this issue, and
for the reasons explained in the initial decision , we agree with the administrative
judge that the WIGI app eal is moot. See Jazdzewski v. Department of
Agriculture , 35 M.S.P.R. 541 , 542 -43 (1987).
The Board lacks jurisdiction over the reduction -in-pay appeal.
¶9 The Board has jurisdiction to review an appeal of a reduction in grade or
pay. 5 U.S.C. §§ 7512 , 7513(d). The general rule is that a reduction in an
employee’s rate of basic pay i s appealable to the Board. See 5 U.S.C.
§§ 7511 (a)(4), 7512(4), 7513(d). However, there is an exception to this rule for
cases in which an agency reduces an employee’s basic pay “from a rate that is
contrary to law or regulation.” 5 C.F.R. § 752.401 (b)(15). Such an action is not
appealable to the Board. Id.; see Hall v. Department of the Navy , 73 M.S.P.R.
251, 254 (1997); Warren v. Department of Transportation , 19 M.S.P.R. 560 , 565
(1984).
¶10 When an agency contends that it reduced an employee’s pay to correct what
it believes was an error in setting pay, then the agency bears the burden of
showing that it set the employee’s pay at a rate contrary to law or regulation.
Lomax v. Department of Defense , 78 M.S.P.R. 553 , 559 -60 (1998). The Board
has held that an employee should no t be forced to prove that the agency did not
make an error in setting her pay because the agency is in a much better position to
know why it originally set the employee’s pay as it did and what later led it to
conclude that it made an error. Vega v. U.S. Postal Service , 108 M.S.P.R. 221 ,
¶ 11 (2008).
¶11 As noted above, the alleged pay -setting error in this case was detected
during an aud it approximately 1 0 months after the appellant first transferred to
7
the agency at GS-12, step 10. 0790 IAF, Tab 6 at 4. When the appellant was
repromoted to GS -13, the agency was required to set her pay at step 6 of that
grade because that was the lowest step “which exceed[ed her] existing rate of
basic pay by not less than two step -increases of the grade f rom which [she was]
promoted.” 5 U.S.C. § 5334 (b). This much appears to be undisputed. 0790 IAF,
Tab 4 at 4, Tab 17 at 8 -9. The dispute concerns whether the agency’s original
pay-setting action upon transfer was contrary to law or regulation.
¶12 According to the agency, the original pay setting at GS -12, step 10 was
contrary to AFI 36 -802, ¶ 1.2.5.3 , because it resulted in a repromotion to GS -13,
step 6, which exceeded the appellant’s previous rate of GS -13, step 4 at the
Department of State. 079 0 IAF, Tab 17 at 8 -10. The administrative judge agreed
and found that the original pay setting was contrary to that regulation, and
therefore , the reduction in pay to correct that error was outside the Board’s
jurisdiction. ID at 7-9.
¶13 The appellant disagrees with that analysis for two reasons. First, she argues
that the agency improperly interprets the term “pay” in AFI 36 -802, ¶ 1.2.5.3 , to
mean “basic pay” rather than “adjusted basic pay,” i.e. , basic pay plus the locality
adjustment. PFR File, T ab 1 at 8 -10. Including the locality adjustment as part of
the appellant’s “pay,” her rate upon repromotion was still less than her previously
held rate because she transferred from a higher -rate locality area to a lower one.
Including the locality adjus tments, the appellant’s former GS -13, step 4 position
in the Washington, D.C. , locality area paid at a higher rate ($104,275) than her
GS-13, step 6 repromotion position in the rest of the United States locality area
($100,118). 0709 IAF, Tab 5 at 4, 7 -9, 15. Only by excluding the locality pay
could the appellant’s repromotion pay ($87,014) be said to exceed her former
GS-13 rate of pay ($84,042). Id. at 7.
¶14 An administrative agency’s interpretation of its own regulations is generally
entitled to great deference, unless the interpretation is plainly erroneous or
inconsistent with governing law. Connolly v. Department of Homeland Security ,
8
99 M.S.P.R. 422 , ¶ 15 (2005). Under the circumstances of this case, we find that
deference to the agency’s interpretation is appropriate. The definitions section of
AFI 36 -802 provides as follows:
Locality Pay —Locality -based comparability payme nts for GS
employees. Locality pay is basic pay only for purposes of retirement
(Civil Service Retirement System, Federal Employees Retirement
System, and the Thrift Savings Plan), life insurance, premium pay
(including overtime pay, hazard pay, and stand by duty pay),
severance pay, and lump -sum payments for annual leave. Locality
pay is not basic pay for within -grade increases, promotions, pay
retention, highest previous rate, recruitment and relocation bonuses,
retention allowances, supervisory differen tials, and other payments
or benefits calculated as a percentage of basic pay.
AFI 36 -802, Attachment 1, available at https://static.e -
publishing.af.mil/production/1/usafa/publication/afi36 -802_usafasup/afi36 -
802_usafasup.pdf (last visited on Apr. 18, 202 3). We therefore find that the
agency properly excluded locality pay in determining that the appellant’s
repromotion r esulted in pay at a rate exceeding that which she previously held
with the Department of State.
¶15 Second, the appellant argues that the agency has failed to identify any law
or Office of Personnel Management (OPM) regulation to support its promulgation
of AF I 36-802. PFR File, Tab 1 at 7 -8. She disputes the agency’s contention that
AFI 36 -802, ¶ 1.2.5.3 , “directly mimics 5 U.S.C. 5334 (b).” PFR File, Tab 1 at 7;
0790 IAF, Tab 17 at 10. We agree wit h the appellant that AFI 36 -802, ¶ 1.2.5.3 ,
is not derived from 5 U.S.C. § 5334 (b); there is nothing in that s tatute to prevent
an employee being repromoted at a rate that exceeds her former pay in the same
grade. Nor has the agency identified any other statute or regulation that imposes
such a restriction on pay setting. This raises the question of whether AFI 36 -802
is a “law or regulation” within the meaning of 5 C.F.R. § 752.401 (b)(15).
¶16 Because neither party received notice of the applicable standard below, the
Office of the Clerk of the Board issued a show cause order seeking evidence and
argument on whether AFI 36 -802 is a r egulation entitled to the force and effect of
9
law. PFR File, Tab 5. Regardless of whether a provision of an agency’s
personnel manual or handbook was published or promulgated under the standards
set out in the Administrative Procedure Act, such provision is a regulation
entitled to the force and effect of law if:
(1) the promulgating agency was vested with the authority to create
such a regulation; (2) the promulgating agency conformed to all
procedural requirements, if any, in promulgating the regulation ;
(3) the promulgating agency intended the provision to establish a
binding rule; and (4) the provision does not contravene a statute.
Hamlet v. United States , 63 F.3d 1097 , 1105 (Fed. Cir. 1995).
¶17 Regarding the first element , we find that AFI 36 -802 was promulgated by
order of the Secretary of the Air Force, who is authorized under 10 U.S.C.
§ 9013 (g)(3) to “prescribe regulations to carry out his functions, powers, and
duties under this title,” which includes management of the civilian workforce.
PFR File, Tab 6 at 8; 0790 IAF, Tab 17 at 35; see 10 U.S.C. § 129. These facts
are not in dispute, and we find that the agency was vested with the authority to
create AFI 36-802.
¶18 Regarding the second element, the agency alleged that the agency
promulgated AFI 36 -802 according to the ap plicable procedures found in
AFI 33-360, Communications and Information (Dec . 1, 2015). PFR File, Tab 6 at
8-9, 12 -175. This fact is also undisputed, and we find that AFI 36-802 was
promulgated in conformity with all applicable procedural requirements.
¶19 Regarding the third element, the agency argues that it intended AFI 36 -802
to establish a binding rule. PFR File, Tab 6 at 9. By its own terms, the AFI
“applies to all commanders, civilian personnel officers, staff officers, and
supervisors of US civilian employees who are covered by the [General Schedule]
and [Federal Wage System].” PFR File, Tab 6 at 9; 0790 IAF, Tab 17 at 35. In
addition, the Guidance Memorandum supplementing AFI 36 -802 states that
“[c]ompliance with this memorandum is mandatory,” and , to the extent that there
is a conflict with other agency publications , the memorandum controls. PFR File,
10
Tab 6 at 9; 0790 IAF, Tab 17 at 31. The appellant disputes this, arguing that the
AFI is akin to nonbinding O PM Policy Guidelines because it is su bject to change
and “may be supplemented at any level.” PFR Fi le, Tab 7 at 4 -5; 0790 IAF,
Tab 17 at 31. However, we do not think that these characteristics of the AFI are
material to the issue of whether it is binding. The fact that the AFI may be
suppl emented at any level does not mean that it can be overruled, contradicted, or
ignored; to our understanding, supplementation entails the provision of additional
terms that are not inconsistent with the underlying material. Nor is it significant
that the A FI is subject to change because any law or regulation is subject to
change by the proper authority under proper procedures. The appellant points out
that the language the agency identified concerning mandatory compliance appears
in the accompanying Guidan ce Memorandum and not in the AFI itself. PFR File,
Tab 7 at 5 -6; 0790 IAF, Tab 17 at 31. This is true. However, AFI 36-802 itself
similarly says in the header on page 1 that “ COMPLIANCE WITH THIS
PUBLICATION IS MANDATORY .” Given the explicit an d unambi guous
nature of this language, the nonoptional connotation of the term Air Force
“Instruction ,” as opposed to O PM “Guideline,” and the description of AFIs in
AFI 33 -360, Table 4.1, Item 4 , as “orders of the Secretary of the Air Force” to
“ensure compliance . . . Air Force -wide,” we find that AFI 36 -802 was meant to
establish a binding rule. PFR File, Tab 6 at 59.
¶20 Regarding the fourth element, the agency argues that AFI 36 -802, ¶ 1.2.5.3 ,
is consistent with the related statutory and regulatory provisions of 5 U.S.C.
§ 5334 (b), 5 C.F.R. part 531, subpart B, and 5 C.F.R. part 532, subpart D. PFR
File, Tab 6 at 9. The appellant disputes this, arguing that AFI 36 -802, ¶ 1.2.5.3 ,
is not derived from 5 U.S.C. § 5334 (b), as the agenc y alleged below. PFR File,
Tab 7 at 6 -7; 0790 IAF, Tab 17 at 10. Although we agree with the appellant that
AFI 36 -802, ¶ 1.2.5.3 , is not derived from 5 U.S.C. § 5334 (b), see supra ¶ 15, the
issue is not whether the AFI reiterates a statute but whether it contravenes a
statute. Hamlet , 63 F.3d at 1105. We find that AFI 36 -802, ¶ 1.2.5.3 , does not
11
contravene 5 U.S.C. § 5334 (b), and we are aware of no other statute or regulation
with which it is inconsistent.
¶21 For these reasons, we find that AFI 36 -802, ¶ 1.2.5.3 , is a regulation with
the force and effe ct of law under Hamlet . We further find, for the reasons
explained above, that the agency’s initial setting of the appellant’s pay at GS -12,
step 10 was contrary to AFI 36 -802, ¶ 1.2.5.3. See supra ¶¶ 11-13. Therefore,
we conclude that the appellant’s r eduction in pay was from a rate that was
contrary to regulation and that this action is excluded from the Board’s
jurisdiction unde r 5 C.F.R. § 752.401 (b)(15). See Desai v. Environmental
Protection Agency , 107 M.S.P.R. 268 , ¶ 6 (2007); Lemon v. Department of Labor ,
44 M.S.P.R. 43 , 47-48 (1990).
¶22 The appellant argues, in the alternative, that even if the agency set her pay
at a level contrary to law or reg ulation, the correction of that error should not be
excluded from the Board’s jurisdiction under 5 C.F.R. §752.401 (b)(15) because
the agency did not make the correction within a reasonabl e time. Instead, it
waited nearly a year to do so. PFR File, Tab 1 at 11 -13. The appellant cite s case
law in support of her argument, but we are not persuaded. None of the court or
Board precedential decisions that the appellant cite s deal with the spe cific
regulatory provision at issue, which itself places no time limit on making a pay
correction. PFR File, Tab 1 at 11 -12; see Mazaleski v. Treusdell , 562 F.2d 701 ,
719-20 (D.C. Cir. 1977) (pertaining to the correction of an error in agency
termination proceedings); Gratehouse v. United States , 512 F.2d 1104 , 1109 -10
(Ct. Cl. 1975) (pertaining to the correction of an error in a final decision of the
Civil Service Commission); Bookman v. United States , 453 F.2d 1263 , 1264 -66
(Ct. Cl. 1972) (same); Hudlow v. Department of the Treasury , 8 M.S.P.R. 467 ,
469 (pertaining to t he correction of an erroneously granted WIGI). The initial
decision that the appellant cites does deal with the specific regulation at issue,
Rodgers v. Department of Labor , MSPB Docket No. DC -0752 -13-0435 -I-1, Initial
Decision (Dec. 11, 2013), but initia l decisions are of no precedential value and
12
therefore are not binding on the Board,4 Harris v. Department of the Navy ,
15 M.S.P.R. 464 , 567 n.4 (1983). Furthermore, we do not find this initial
decision to be persuasive because the administrative judge relied on the same case
law cited above. Moreover, even if we were to find that unreasonable delay in
correcting a pay -setting error could preclude the application of 5 C.F.R.
§ 752.401 (b)(15), we are not persuaded that the pay correction within 1 year of
the original error, and within 1 month of the agency discovering the error, was
unreasonably delayed under the circumstances of this case.
We do not reach the appellant’s arguments concerning due process.
¶23 On petition for review, the appellant renews her arguments that the agency
denied her due process with regard to the red uction in pay and collection of the
overpayment of salary. PFR File, Tab 1 at 13 -16. However, as stated above, the
Board lacks jurisdiction over the appellant’s reduction -in-pay claim, supra ¶ 21,
and the Board lacks jurisdiction over debt collections by an agency other than
OPM when the collection is not integral to an otherwise appealable action, see
Secrist v. U.S. Postal Service , 115 M.S.P.R. 199 , ¶ 5 (2010); Brathwaite v. U.S.
Postal Service , 34 M.S.P.R. 239 , 241 (1987). An allegation that an agency failed
to afford an appellant minimal due process does not confer upon the Board an
independent basis to review matters outside its statutory jurisdiction. See
Riddick v. Department of the Navy , 41 M.S.P.R. 369 , 372 (1989). Because the
Board lacks jurisdiction over the appellant’s reduction -in-pay appeal, we do not
reach her arguments concerning due process. See Secrist , 115 M.S.P.R. 199 , ¶ 7.
Accordingly, we vacate the administrative judge’s finding that the appellant
failed to prove her due process claims. ID at 7 -9.
4 Mazaleski , 562 F.2d 701 , is not binding on the Board either because it is a decision of
the U .S. Court of Appeals for the District of Columbia Circuit . See Fairall v. Veterans
Administration , 33 M.S.P.R. 33 , 39, aff’d , 844 F.2d 775 (Fed. Cir. 1987).
13
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for se eking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Plea se read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the c ourt
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you mus t submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 recei ves this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
15
discrimination based on race, color, religion, sex, national ori gin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, y ou may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request w ith the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative rece ives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Feder al Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
16
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises 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.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 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
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 o n
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdic tion.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HICKS_TAMMIE_R_DC_531D_19_0151_I_1_FINAL_ORDER_2023688.pdf | 2023-04-20 | null | S | NP |
3,248 | https://www.mspb.gov/decisions/nonprecedential/BROOKS_CHERON_DC_1221_19_0338_W_1_FINAL_ORDER_2023727.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHERON BROOKS,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-1221 -19-0338 -W-1
DATE: April 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alex G. Anderson , Esquire, David C. Grossman , Esquire , Jeetander T.
Dulani , Esquire , Washington, D.C., for the appellant.
William Horrigan , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the April 26, 2019 initial
decision in this appeal. Initial Appeal File, Tab 18, Initial Decision; 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 After the appellant filed h er petition for review, the parties submitted a
document entitled “ Settlement Agreement ” signed and dated by the Appellant on
March 5, 2023 , and by the agency on March 7, 2023 . PFR File, Tab 10.
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 agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the re cord 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 set tlement 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 10 at 6 . Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropria te under 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 Protect ion 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 ap pellant 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 sh ould contain specific reasons why the
3
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your ca se, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 decis ion. 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) 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
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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
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
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 for the courts of appeals can be 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 | BROOKS_CHERON_DC_1221_19_0338_W_1_FINAL_ORDER_2023727.pdf | 2023-04-20 | null | DC-1221 | NP |
3,249 | https://www.mspb.gov/decisions/nonprecedential/DIFFLEY_PATRICIA_NY_1221_17_0237_W_1_FINAL_ORDER_2023012.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICIA DIFFLEY,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
NY-1221 -17-0237 -W-1
DATE: April 19 , 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Cynthia J. Pree , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction . On
petition for review, the appellant argues that she did establish Board jurisdiction
over her IRA appeal under 5 U.S.C. §§ 2302 (b)(8) and 2302(b)(9) . Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 st atute 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 dis cretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulatio ns, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify why the appellant failed to establish Board
jurisdiction based on 5 U.S.C. § 2302 (b)(9), we AFFIRM the initial decision.
¶2 Between November 2 4, 2014 , and August 8, 2016, the appellant disclos ed to
agency management and to her U.S. Senator that her supervisor had obtained
personal information from the appellant’s therapist and disclos ed it to others,
violating her privacy and causing her embarrassment. Initial Appeal File (IAF),
Tabs 1 , 5. After two investigations, o n October 24, 2016, the agency proposed to
suspend the appellant for 3 days, based on charges of disruptive behavior an d
inappropriate conduct. IAF, Tab 10 at 180. On February 14, 2107, she filed a
complaint with the Office of Special Counsel (OSC) , alleging that the agency had
proposed her suspension and taken other alleged personnel actions because of her
disclosures . IAF, Tab 1 at 21 -40. After OSC advised the appellant that it had
closed its file, id. at 54, she filed an I RA appeal , id. at 1-14, and requested a
hearing, id. at 2.
¶3 In her initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID)
at 1, 17 -18. She found that , while the appellant exhausted her remedy before
3
OSC, ID at 8-9, she failed to nonfrivolously allege that her disclosures were
protected. ID at 10-15. Despite that finding, the administrative judge further
found that , even if the appellant’s disclosures were protected, she failed to
nonfrivolously allege that they were a contributing factor in the agency’s decision
to propose her suspension. ID at 15 -17.
¶4 On review, the appellant disputes the administrative judge’s finding s that
she failed to nonfrivolously allege that her disclosures were protected under
5 U.S.C. § 2302 (b)(8) , Petition for Review (P FR) File, Tab 1 at 7 -14, and that her
disclosures were not a contributing factor to her proposed suspension or to other
alleged personnel actions, id. at 14 -18. We have reviewed the administrative
judge’s finding that the appellant failed to nonfrivolously allege that her
disclosures were protected because her allegations regarding her supervisor do
not satisfy the reasonable belief requirement ; that is, because a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by her could not reasonably conclude that the agency’s actions evidenced a
violation of law, rule , or regulation, gross mismanagement, an abuse of authority ,
or any of the other conditions set forth at 5 U.S.C. § 2302 (b)(8) . Lachance v.
White , 174 F.3d 1378 , 1381 (Fed. Cir . 1999). Regarding these issues, the re cord
reflects that the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions. ID at 9-15; see, e.g , Clay
v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to
disturb the administrative judge ’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions) ; Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (same). We therefore agree
with the administrative judge that the appellant failed to nonfrivolously allege
4
that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that, on that
basis, her appeal must be dismissed for lack of jurisdiction.2
¶5 However, t he appellant raised another possible basis for Board jurisdiction.
The record reflects that, o n September 25, 2 013, she initiated a complaint with
the agen cy’s Office of Internal Affairs (OIA) , in which she raised the same
allegations she raised in her other alleged disclosures regarding her supervisor .
IAF, Tab 1 0 at 45-106. The appellant referenced this filing in her OSC
complaint , IAF, Tab 1 at 34, and in her Board appeal , id. 7, alleging Board
jurisdiction based not only on 5 U.S.C. § 2302 (b)(8) , but also (b)(9). IAF, Tab 1
at 9; Tab 5 at 4. Although the administrative judge did, both in her j urisdictional
order and initial decision, set out the basis for Board jurisdiction over an IRA
appeal based on 5 U.S.C. § 2302 (b)(9), IAF, Tab 3 at 3; ID at 7, she did not
analyze the appe llant’s appeal under that statutory provision . We do so now.
¶6 Under 5 U.S.C. § 2302 (b)(9)(A), it is protected activity to exercise “any
appeal, complaint, or grievance right granted by any law, rule, or regulation —
(i) with regard to remedying a violation of [ 5 U.S.C. § 2302 (b)(8)]; or (ii) other
than with regard to remedying a violation of [ 5 U.S.C. § 2302 (b)(8)].” However,
an employee or applicant for employment may seek corrective action from the
Board only for protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), the exercise
of “any appeal, complaint, or grievance right granted by any law, rule, or
regulation ,” seeking to remedy a violation of 5 U.S.C. § 2302 (b)(8) . 5 U.S.C.
§ 1221 (a); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7
(2013).
¶7 As explained above, the substance of th e appellant’s complaints to OIA did
not concern remedying an alleged violation of section 2302(b)(8). Rather, her
complaints to OIA concerned an alleged breach of confidentiality by her
2 Based on this finding, we need not address the appellant’s claims that her disclosures
were a contribut ing factor to her proposed suspension, or that the agency took other
actions against her that were “personnel actions” under 5 U.S.C. § 2302 (a)(2)(A).
5
supervisor and her therapist , designed , in the appellant’s view, to discredit he r
reputation. IAF, Tab 10 at 45 -106. Therefore, the appellant’s complaint to OIA
regarding these matters is not within the purview of section 2302(b)(9)(A)(i), and
the Board lacks jurisdiction to consider such allegations in the context of thi s IRA
appeal. Mudd , 120 M.S.P.R. 365 , ¶ 7; see 5 U.S.C. § 1221 (a).
¶8 Further , we note that, prior to December 12, 2017, the whistleblower
protection statutory scheme included as protected activity “cooperating with or
disclosing information to the Inspector General of an agency, or the Special
Counsel, in accordance with applicabl e provisions of law.” 5 U.S.C.
§ 2302 (b)(9)(C). Section 1097(c)(1) of the National Defense Authorization Act
of 2018 (NDAA) , Pub. L. No. 115 -91, 131 Stat. 1283 , 1618 (2017), amended
section 2302 (b)(9)(C) to provide that, in addition to the Inspector General of an
agency or the Special Counsel, a disclosure to “any other component responsible
for internal investigation” is also protected.
¶9 Here, as noted above, the appellant made purported disclosu res to OIA. ID
at 2-4; IAF , Tab 5 at 20 -21, 28 -33. All of the events relevant to this appeal
occurred prior to the enactment of the NDAA. Accordingly, we need not decide
whether the appellant’s disclosures fall within the coverage of the amended
section 2302(b)(9)(C) because the Board has found that the statutory provision is
not retroa ctive. Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 30-33.
Therefore it does not apply to this appeal. As such, we find that the appellant
failed to nonfrivolously allege that she engaged in protected activity protected by
5 U.S.C. §§ 2302 (b)(9)(A) or 2302(b)(9)(C), and that, on th ese bases as well, her
appeal must be dismissed for lack of jurisdiction.3
3 We have reviewed the relevan t legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this mat ter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. 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).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in f inal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the fo llowing
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
8
discrimination based on race, color, 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 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
9
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no ch allenge 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 “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | DIFFLEY_PATRICIA_NY_1221_17_0237_W_1_FINAL_ORDER_2023012.pdf | Date not found | null | NY-1221 | NP |
3,250 | https://www.mspb.gov/decisions/nonprecedential/PREWITT_GREGORY_DC_0752_16_0598_I_1_FINAL_ORDER_2023287.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GREGORY PREWITT,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -16-0598 -I-1
DATE: April 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan C. Nerney , Esquire, Encinitas, California, for the appellant.
Daniel Patrick Doyle , Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL O RDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s indefinite suspension action. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
erron eous 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 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 Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant serves as a Criminal Investigator with the agency’s Naval
Criminal Investigative Service (NCIS). Initial Appeal File (IAF) , Tab 8 at 15.
The appellant’s position requires him to maintain a Top Secret security clearance
with access to Sensitive Compartmented Information. Id. at 24-28. On
September 29, 2014, the agency’s Office of Inspector Gen eral (OIG) initiated an
investigation into allegation s that the appellant violated NCIS policy or engaged
in other misconduct , including using illegal drugs, possessing contraband images,
and committing security violations. IAF, Tab 17 at 7. The OIG inve stigation
resulted in the issuance of a February 9, 2015 interim Report of Investigation
(ROI) detailing the investigation ; a final ROI was issued on December 1, 2015 .
IAF, Tab 17 at 5 -13, Tab 18 at 42 -43.3 On August 1 9, 2015, the agency proposed
to suspend the appellant for 45 days based on misconduct described in the interim
ROI. IAF, Tab 16 at 38 -42. The appellant provided an oral and written reply to
3 A few pages of the final ROI appear to be omitted from the ROI in the record. IAF,
Tabs 17, 18.
3
the proposed suspension , and on November 20, 2015, the deciding official for this
suspension act ion issued a decision that mitigated the penalty to a 14 -day
suspension . IAF, Tab 19 at 33 -40.
¶3 In a January 20, 2016 memorandum, the agency notified the appellant that it
had suspended his access to classified information , based on agency regulation
SEC NAV M -5510.30 and the ROI , pending a favorable or unfavorable security
determination by the Department of Defense Consolidated Adjudications Facility,
Navy Division . IAF, Tab 8 at 22 . In a February 4, 2016 notice, the agency
proposed the appellant’s inde finite suspension based on the suspension of his
access to classified information , pending a final adjudication of his security
clearance. Id. at 20 -21. On February 23 , 2016, the appellant submitted a written
reply to the notice of proposed indefinite su spension, and on April 12, 2016, he
provided an oral reply. Id. at 17, 29 -55. On April 20, 2016, the agency issued a
decision indefi nitely suspending the appellant, effective on April 23, 2016. Id.
at 17-19.
¶4 The appellant timely filed an appeal to the Board in which he argued that
the suspension did not promote the efficiency of the service and that the penalty
was excessive, and he asserted affirmative defenses of age discrimination,
harmful procedural error , retaliation for participation in pr otected activity, due
process defects, res judicata, collateral estoppel, and laches. IAF, Tab 1
at 1, 8-28. Prior to the hearing held in this matter, the administrative judge ruled
that the appellant’s age and disability discrimination claims were “inex tricably
intertwined” with the merits of the agency’s security access determination and
could not be adjudicated in the insta nt proceeding. IAF, Tab 29 at 4. The
administrative judge also ruled that , to the extent the appellant was arguing that
the notic e proposing the indefinite suspension was defective because it did not
inform him of any misconduct and that his access to classified information was
suspended in retaliation for filing a grievance, those issues pertained to the
agency’s decision to suspen d the appellant’s ac cess to classified information and
4
would not be adjudicated in the instant proceeding. Id. at 5-6. Finally, the
administrative judge ruled that the 14-day suspension action the agency took in
2015 was based on separate issues and causes of action from the instant
proceeding ; thus, res judicata and collateral estoppel did not apply to the instant
proceeding, nor was the appellant subject to double or excessive punishment. Id.
at 6-7. The administrative judge also notified the appe llant of the elements of his
burden to prove harmful procedural error . Id. at 4-5.
¶5 Following a hearing, the administrative judge issued an initial decision
sustaining the agency’s indefinite suspensio n action. IAF, Tab 31, Initial
Decision (ID). Speci fically, the administrative judge found that the agency
prov ed that the appellant’s position required access to classified information as a
condition of employment, the appellant’s access to classified information was
suspended, and the appellant was affor ded the minimum due process required
under 5 U.S.C. § 7513 . ID at 2 -5. The administrative judge also found that the
appellant did not show that the agency committed harmful procedural error ;
acco rdingly, he sustained the indefinite suspension. ID at 5 -10.
¶6 The appellant has timely filed a petition for review in which he argues that
(1) the administrative judge erred in finding that the appellant was afforded
minimum due process under 5 U.S.C. § 7513 , (2) the administrativ e judge erred in
interpreting agency regulation SECNAV 5510.30 and finding that the agency did
not violate this regulation or commit harmful procedural error regarding this
regulation, and (3) the administrative judge erred in findi ng agenc y witnesses
credible. Petition for Review (PFR) File, Tab 1 , Tab 4 at 6 . The agency has filed
a response opposing the petition , and the appellant has filed a reply . PFR File,
Tabs 3, 4. As set forth below, we find the appellant’s arguments to be without
merit.
5
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513 (d). 5 U.S.C. § 7512 (2); Rogers v.
Department of Defense , 122 M.S.P.R. 671 , ¶ 5 (2015). An agency may
indefinitely suspend an employee when his access to classified information has
been suspended and he needs such access to perform his job. Rogers ,
122 M.S.P.R. 671 , ¶ 5. In such a case, the Board lacks the authority to review the
merits of the decision to suspend an employ ee’s access to classified information.
Id.; see Department of the Navy v. Egan , 484 U.S. 518 , 530 -31 (1988) (holding
that review of the merits o f a security clearance determination is not within the
Board’s jurisdiction). Rather, the Board retains the authority to review whether
(1) the employee’s position required access to classified information , (2) the
employee’s access to classified information was suspended , and (3) the employee
was provided with the procedural pr otections specified in 5 U.S.C. § 7513 .
Rogers , 122 M.S.P.R. 671 , ¶ 5 (citing Hesse v. Department of State , 217 F .3d
1372 , 137 6 (Fed. Cir. 2000)). In addition, the Board has the authority to review
whether the agency provided the procedural protections required under its own
regulations. 5 U.S.C. § 7701 (c)(2)(A); Rogers , 122 M.S.P.R. 671 , ¶ 7; see
Romero v. Department of Defense , 527 F.3d 1324 , 1329 -30 (Fed. Cir. 2008) .
Finally, because a tenured Federal employee has a property interest in continued
employment, the Board a lso has the authority to determine whether the agency
provided the employee with minimum due process in taking the indefinite
suspension action. See Buelna v. Department of Homeland Security ,
121 M.S.P.R. 262 , ¶¶ 13-15 (2014) (reaffirming the Board’s authority to
determine whether an agency afforded an appellant due process in taking an
adverse action based on a security clearance determination) .
¶8 On review, the appellant does not challenge the administrative judge’s
findings that his position required access to classified information and that his
access was suspended. ID at 2 -4. We affirm the administrative judge’s findings
6
that the agency proved the elements of its charg e and address the appellant’s
allegations that the agency denied him due process and committed harmful
procedural error and that the administrative judge erred in his credibility findings .
The appellant has not established that the agency did not afford him minimum
due process.
¶9 On review, the appellant argues that he was not afforded minimum due
process under 5 U.S.C. § 7513 because (1) the notice of proposed indefinite
suspension did not contain sufficient notice and an explanation of the charges
against him, (2) he did not receive the interim ROI in sufficient time to analyze it
before his oral reply, (3) he did not receive the fina l ROI, which the deciding
official relied upon to issue his decision , until after the suspension was effected ,
and (4) the deciding official did not have the authority to choose an alternative
penalty to indefinite suspension . PFR File, Tab 1 at 8-12. The initial decision
did not distinguish the appellant’s constitutional right to procedural due process
from the procedural protections pro vided by statute under 5 U.S.C. § 7513 , and
on review, it is unclear whether the appellant is alleging a violation of one or both
sets of rights .4 ID at 4-5; PFR File, Tab 1 at 8 -12. As set forth below, the
appellant’s arguments are without merit under either avenue .
4 Although 5 U.S.C. § 7513 is inclusive of the due process rights independently
guaranteed under the U.S. Constitution, the inquiry as to whether an agency provided
due process is, in certain respects, a distinct inquiry from whether the agency has
complied with the procedures set forth in section 7513 . Buelna , 121 M.S.P.R. 262 , ¶ 15
n.6. The right to due process is conferred by constitutional guarantee and is not subject
to the harmful er ror test. Id.; see Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368 , 137 5, 1377 (Fed. Cir. 1999) (explaining that the Federal stat utory
employment scheme creates a property interest in continued employment but this
property interest is not defined by, or conditioned on, Congress’ choice of procedures
for deprivation of the interest). Conversely, the procedural protections enumerated in
section 7513 are statutory, and an appellant must show that the agency committed
harmful error in appl ying its procedures to warrant reversing an action. See Rawls v.
U.S. Postal Service , 94 M.S.P.R. 614 , ¶¶ 22-24 (2003) (examining whether the
appellant showed that the agency committed harmful error in effecting the appellant’s
indefinite suspension and removal under 5 U.S.C. § 7513 (b)), aff’d , 129 F. App’x 628
(Fed. Cir. 2005) ; cf. Gargiulo v. Department of Homeland Security , 727 F.3d 1181 ,
7
¶10 The essential requirements of constitutional due process for a tenured public
employee are notice of the charges against him, with an explanation of the
evidence, and an opportunity for the employee to present his account of events
prior to the deprivation of his property right to continued employmen t. Cleveland
Board of Education v. Loudermill , 470 U.S. 532 , 546 -48 (1985). Here, the
agency provided the appellant with the minimum notice , ex planation of the
evidence, and opportunity to respond that due process required.
¶11 We find that th e agency afford ed the appellant sufficient notice and an
explanation of the charges against him. In the context of an indefinite suspension
stemming from the s uspension of an employee’s access to classified information ,
the only relevant factual disputes that could be raised regarding the charge are
whether the position required access to classified information and whether that
access was suspended. See Buelna , 121 M.S.P.R. 262 , ¶ 23. Thus, in this
context, an agency is not obligated as a matter of constitutional due process to
notify the employee of the specific reasons for suspen ding his access to classified
information . Id., ¶ 25. For the purposes of due process, it is sufficient for an
agency to inform the employee that his position required access to classified
information and that he could no longer hold his position once he had lost access
to classified information . Id. Here, the agency provided the appellant with this
information in the notice of proposed indefinite suspension . IAF, Tab 8 at 20.
¶12 We similarly find that the ap pellant had an opportunity to respond to the
proposed indefinite suspension prior to its imposition . Due process requires, at a
minimum, that an employee being deprived of his property interest be given “the
opportunity to be heard ‘at a meaningful time a nd in a meaningful manner.’”
Mathews v. Eldridge , 424 U.S. 319 , 333 (1976) (quoting Armstrong v. Manzo ,
1186 (Fed. Cir. 2013) (holding that the right to notice of the reasons for suspending an
employee’s access to classified information, when that is the reason for placing an
employee on enforced leave pending a decision on the employee’s security clearance, is
not constitutional but statutorily provided by 5 U.S.C. § 7513 (b)).
8
380 U.S. 545 , 552 (1965) ). It is undisputed that the appellant had the opportunity
to respond to the deciding official, both in writing and orally, before the
indefinite suspension was imposed; accordingly, we conclude that the appellant
had the opportunity to be heard at a meaningful time. IAF, Tab 8 at 17, 29-55;
Buelna , 121 M.S.P.R. 262 , ¶ 21.
¶13 The opportunity to be heard in a meaningful manner in connection with an
adverse action based on the susp ension of access to classified information is
limited to “invok[ing] the discretion of a deciding official with authority to
change the outcome of the proposed acti on to the extent that may have been
feasible.” Id., ¶ 28. The appellant argues that the de ciding official did not have
the authority to change his decision based on the deciding official’s testimony
that (1) he had no other option than to suspend the appellant if he found his
position required access to classified information and that access wa s suspended ,
and (2) suggested he did not read or consider all of the evidence.5 PFR File,
Tab 1 at 9 -12. We find the appellant’s assertions that the deciding official had
limited authority are unsupported by the record. The deciding official testified
that he had the authority to consider other options and considered the appellant’s
request for relief other than indefinite suspension , but he did not consider
administrative leave a good use of agency resources, and he did not find that
reassignment to ot her duties usually worked out well. IAF, Tab 30, Hearing
Compact Disc (HCD) (test imony of the deciding official). Due process does not
demand that the deciding official consider alternatives to the proposed adverse
action that are prohibited, impracticab le, or outside management’s purview.
Buelna , 121 M.S.P.R. 262 , ¶ 27. Here, the record reflects that the deciding
official had t he authority to consider and did, in fact, consider the appellant’s
5 In his reply to the agency’s opposition to the petition for review, the appellant asserts
that he was unable to cite specifically to the hearing record because he and his
representatives were unable to open the hearing compact disc. PFR File, Tab 4
at 7-8, 11. We have reviewed the relevant hearing testimony and do not find support
for the appellant’s characterization of the deciding official’s testimony.
9
requests and alternative penalties but chose not to impose a lesser penalty. See
HCD (testimony of the deciding official).
¶14 The appellant also argues that the deciding official’ s testimo ny that he did
not know the appellant was working in a nonclassified environment for a period
of time prior to the indefinite suspension and that another individual had
allegedly remained in an unclassified position pending a security clearance
determinati on as evidence that the deciding official did not read or consider the
appellant’s replies prior to making his decision. PFR File, Tab 1 at 11 -12. Our
review of the record reflects that the deciding official testified that he was not
aware the appellant was placed in a nonclassified position from January to April
2016 . HCD (testimony of the deciding official). Even if the appellant provided
the deciding official with this information during his re plies , it is not sufficient to
establish that the deciding official did not con sider the appellant’s replies and did
not have the authority to impose a different penalty . The deciding official
testified that he considered all of the written documents provided by the appellant
and his oral reply , and he a lso stated in his Apri l 20, 2016 decision that he
considered the appellant’s written and oral replies. IAF, Tab 8 at 17 ; HCD
(testimony of the deciding official) . We do not find the appellant’s work in a
nonclassified position so material to the deciding official’s consideration of the
appellant’s replies as to demonstrate that the deciding official did not consider the
replies. Accordingly, we conclude that the appellant received an opportunity to
invoke the deciding official’s authority to change the o utcome of the indefinite
suspension and has not shown that he was denied due process.
The appellant has no t established that the agency failed to provide the appellant
with the procedural pr otections set forth in 5 U.S.C. § 7513 .
¶15 Alternatively, the appellant may establish that the agency failed to provide
him with the procedural prot ections provided under 5 U.S.C. § 7513 , but he has
not made such a showing. An employee cannot be deprived of his interest in
continued employment without the procedural p rotections provided by 5 U.S.C.
10
§ 7513 (b).6 King v. Alston , 75 F.3d 657 , 661 (Fed. Cir. 1996). The Board will
reverse an indefinite suspension based on the suspension of a security cleara nce if
the appellant shows harmful error in the application of 5 U.S.C. § 7513 (b) in
arriving at the decision to impose the suspension . 5 U.S.C. § 7701 (c)(2) (A); see
Buelna , 121 M.S.P.R. 262 , ¶¶ 33-34; Rawls , 94 M.S.P.R. 614 , ¶¶ 22-23. To prove
harmful procedural error, the appellant must show both that the agency committed
procedural error and that the error was harmful. Rogers , 122 M.S.P.R. 671 , ¶ 7.
Harmful error cannot be presumed; an agency error is harmful only wh ere the
record shows that the error was likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. Id. The appellant bears the burden of proving by preponderant
evidence that t he agency committed harmful error in reaching its decision.
5 C.F.R. § 1201.56 (b)(2)(i)(C), (c)(1).
¶16 On review, the appellant argues that the administrative judge erred in
finding that the appellant received the protections afforded by 5 U.S.C. § 7513
because the notice of proposed indefinite suspen sion was insufficiently detai led
as to the reasons for the suspension. PFR File, Tab 1 at 8 -9. The administrative
judge found that it was sufficient that the notice referenced the
suspension -of-access letter, which referenced the ROI upon which the suspension
6 Section 7513(b) provides:
An employee against whom an action is proposed is entitled to —
(1) at least 30 days’ advance written notice, unless there is reasonable
cause to believe the employee has committed a crime for which a
sentence of imprisonment may be imposed, stating the specific reasons
for the proposed action;
(2) a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in
support of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the earliest
practicable date.
11
of access was based, an d we agree. ID at 5. Under 5 U.S.C. § 7513 (b)(1), an
employee facing an adverse action must be notified of the specific reasons for a
proposed adverse action. Buelna , 121 M.S.P.R. 262 , ¶ 25. In the context of an
indefinite suspension based on the suspension of access to classified information ,
section 7513(b)(1) requires that the appellant be provided sufficient information
to make an informed reply, including a statement of the reasons for suspending
the access . Id., ¶ 34. Here, the February 4, 2016 notice of proposed indefinite
suspension did not state the reasons for suspen ding the appellant’s access to
classified information ; however, it stated that, “As documented by reference (c),
you received a letter from the NCIS security office suspending your access to
classified information pending a final adjudication of you r security clearance ,”
and referred to reference (c) as the January 20, 2016 memorandum notifying the
appellant that his access to classified information had been suspended. IAF,
Tab 8 at 20 -22. The a ppellant has not disputed that he received the January 20,
2016 notice. Id. at 22. The January 20, 2016 notice stated that , “Per references
(a) and (b), your access to classified inf ormation has been suspended ,” and
referred to reference (b) as the ROI. Id. The ROI contained a narrative statement
detailin g the allegations leveled against the appellant upon which the
investigation was based , as well as a 9-page investigative report and 19 exhibits
attached to the report . IAF, Tabs 17, 18 . The record reflects that the appellant’s
representative in the proposed 45 -day suspension action received the interim ROI
by October 2015, and even if the appellant did not receive the ROI at that time
from his representative, he received the ROI 1 week pr ior to his oral reply to the
proposed indefinite suspension .7 IAF, Tab 19 at 58 ; HCD (testimony of the
7 The appellant claimed that he did not receive the ROI prior to 1 week before his oral
reply in the proposed indefinite suspension action. HCD (testimony of the appellant).
However, the August 19, 2015 proposed 45 -day sus pension for the appellant referenced
the interim ROI. IAF, Tab 16 at 38 -42. The proposing official in the 45 -day
suspension action, who was also the proposing official in the indefinite suspension
action, testified that the ROI was an enclosure to the pr oposal to suspend and that
12
appellant) ; PFR File, Tab 1 at 8 . Thus, the February 4, 2016 notice of proposed
indefinite suspension directed the appellant , via the January 20, 2016 notice
suspending his access to classified information , to a statement in the ROI of the
reasons for suspen ding his access to classified information that was sufficiently
detailed for the appell ant to make an informed reply . See Buelna , 121 M.S.P.R .
262, ¶ 34 (concluding that the notice suspending the appellant’s security
clearance, coupled with the notice proposing his indefinite suspension, adequately
informed him of the basis for suspen ding his security clearance).
¶17 The appellant also argues that his receip t of the interim ROI after his
written reply and 1 week prior to his oral reply to the proposed indefinite
suspension provided an insufficient amount of time to analyze the interi m ROI.
PFR File, Tab 1 at 8 -10. He does not contend that he was unable to r eview the
ROI during that time period. Although the record reflects that the appellant’s
first representative received the interim ROI in October 2015, even if the
appellant did not receive the ROI until 1 week before the oral reply to the
proposed indefi nite suspension, we nevertheless find that receipt of the interim
ROI 1 week prior to the oral reply was a reasonable amount of time for the
appellant to review it and make an informed reply . See 5 U.S.C. § 7513 (b)(2)
(providing for a reasonable amount of time, but no less than 7 days, to answer
orally and in writing).
¶18 Finally, the appellant argues that it was error that he did not receive the
final ROI until after the decision to impose the indefinite suspension was issued
because the deciding official relied upon it in issuing the decision. PFR File,
Tab 1 at 8. As the only information material to an agency’s cha rge involving the
suspension of access to classified information is whether the employee’s position
although he did not personally deliver the proposal and enclosures to the appellant, he
provides them to his staff to provide to the employee. HCD (testimony of the proposing
official). During the appellant’s October 30, 2015 o ral reply to the proposed 45 -day
suspension, the appellant’s representative acknowledged receiving the August 19, 2015
proposal and materials relied upon. IAF, Tab 19 at 58.
13
required access to classified information and whether that access was suspended,
there is no evidence that any differences between the interim and final ROI
constituted new and material information regarding the charge. See Buelna ,
121 M.S.P.R. 262 , ¶ 31. To the extent the deciding official’s penalty
determination was influenced by the factual basis for the underlying suspension
of access to classified information , an appellant is entitled to notice of the
information on which he relied; however, the appellant does not make this
argu ment, nor does the record reflect that the deciding official considered the
underlying suspension of access to classified information in his choice of p enalty.
IAF, Tab 8 at 17 -19; HCD (testimony of the deciding official); see Buelna ,
121 M.S.P.R. 262 , ¶¶ 31-32. Accordingly, we affirm the administrative judge’s
findings that the appellant did not prove that the agency did not prov ide him with
the procedural pr otections set forth in 5 U.S.C. § 7513 (b).
The appellant has not established that the agency committed harmful procedural
error in applying its regulations.
¶19 On review, the appellant argues that the administrative judge erred in ruling
that referencing the R OI in the notice of proposed indefinite suspension was
sufficient to satisfy agency regulation SECNAV 5510.30 § 9-2(2)(a ). PFR File,
Tab 1 at 15 -16. He fu rther argues that the agency violated SECNAV 5510.30
because it failed to at tach the ROI to the notice of proposed indefinite suspension ,
and he did not receive the interim ROI until 1 week before his oral reply and did
not receive the final ROI until afte r the suspension was effected. Id. at 12-14.
He contends that the agency’s alleged violation prevented him from responding to
the agency’s specific concerns, and the deciding official would likely have
changed his decision had he done so . Id. at 13 -14.
¶20 The Board will reverse an agency decision if the appellant proves harmful
error in the agency’s application of its procedures in arrivin g at such a decision.
5 U.S.C. § 7701 (c)(2)(A); Rogers , 122 M.S.P.R. 671 , ¶ 7. The agency procedure
at issue, contained in SECNAV M-5510.30 § 9-7(2)(a) , provides that whenever a
14
determination is made to suspend access to classified information, “The
individual concerned must be notified of the determination in writing within
10 days by the commanding officer or designee, to include a brief statement of
the reason(s) for the suspension action consistent with t he interests of national
security. ” SECNAV M -5510.30 § 9-7(2)(a) (2006), available at
https://usna.edu/Training/_files/documents/References/3C%20MQS%20Reference
s/SECNAV%20Manual%205510.30%20Personnel%20Security%20Program.pdf
(emphasis in the original) (last visited on Apr. 12, 202 3).8 The appellant argues,
as he did below, that the January 20, 2016 notice suspending his access to
classified information did not state the reasons for the suspen sion action. IAF,
Tab 16 at 9 -10; PFR File, Tab 1 at 15 -16. The administrative judge found that the
notice indicated that the reason the appellant was susp ended was based on the
ROI. ID at 9. We agree with the administrative judge t hat, however brief, the
January 20, 2016 notice provided a statement of the reason for suspen ding the
appe llant’s access to classified information. IAF, Tab 8 at 22.
¶21 The appellant argues that referencing the document on which the suspension
is based, and the agency’s alleged failure to provide the document, is insufficient
to meet the regulation’s requireme nts; however, the regulation is silent as to
whether such a reference is sufficient. The agency official that issued the
January 20, 2016 notice testified that the January 20, 2016 notice was in
compliance with the agency regulation, and the appellant has not presented any
evidence to rebut the agency’s int erpretation of its regulation. HCD (testimony of
the NCIS security manager). Where a governing statute is silent and the
implementing regulations are ambiguous on the issue to be resolved, the
implemen ting agency’s interpretation of its own regulations is entitled to
8 The record does not contain a copy of the regulation at issue . T he agency’s
prehearing statement cited to an online copy of SECNAV M -5510.30 that is no longer
available . IAF, Tab 20 at 5. The initial decision and petition for review incorrectly
cited the quoted agency regulation as SECNAV M -5510.30 § 9-2(2)(a).
15
deference when it is reasonable and does not conflict with a governing statute,
even if other interpretations are possible. Phillips v. Department of the Interior ,
95 M.S.P.R. 2 1, ¶ 9 (20 03) (citing Chevron , U.S.A. , Inc. v. Natural Resources
Defense Council , Inc., 467 U.S. 837 , 842 -43 (1984) , and Wassenaar v. Office of
Personnel Management , 21 F.3d 1090 , 1092 (Fed. Cir. 1994)) , aff’d ,
131 F. App’x 709 (Fed. Cir. 2005) . We find that the agency’s interpretation is
entitled to deference, particularly in light of our decisions finding that it is
suffici ent for the purpose of 5 U.S.C. § 7513 (b)(1 ) for the agency notice setting
forth a proposed adverse action concerning the suspension of access to classified
information to direct the appellant to another document in his possession that sets
forth t he specific reasons for the action at issue. See, e.g. , Buelna , 121 M.S.P.R.
262, ¶ 34. Accordingly, we do not find that the administrative judge erred in
interpreting SECNAV M-5510.30 § 9-7(2)(a) .
¶22 The appellant argues that the agency offic ial that issued the January 20,
2016 notice acknowledged that the notice of suspension of access to classified
information would be defective if the appellant did not have the ROI to which it
referred and that the appellant did not receive the ROI ; therefore, the notice was
defective. HCD (testimony of the NCIS security manager); PFR File, Tab 1
at 12-13. The administrative judge did not explicitly make findings as to whether
the January 20, 2016 notice would have been defective if the appellant had not
received the ROI prior to or concurrently with receipt of the notice and whether
the appellant posse ssed the ROI at the time he received the January 20, 2016
notice . ID at 9 -10. As set forth above, the appellant’s first representative
received the interim ROI prior to the issuance of the January 20, 2016 notice.
IAF, Tab 19 at 58. Even if the appella nt did not receive the interim ROI from his
first representative and was not in receipt of the ROI at the time he received the
January 20, 2016 notice, w e need not determine whether the appellant established
that the agency erred in this regard because the appellant has not established that
any such error would have been harmful. Even if the agency violated its
16
regulation, the appellant has not established that it would have led the agency to
reach a different conclusion concerning the proposed indefinite suspension . See
Robinson v. Department of the Treasury , 96 M.S.P.R. 600 , ¶¶ 11 -13 (2004)
(holding that the appellant failed to prove harmful procedural error whe n she did
not show that the agency’s failure to comply fully with the procedural
requirements of 5 U.S.C. § 7513 (b) caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error ),
aff’d , 135 F. App’x 423 (Fed. Cir. 2005). The appellant claims that if he had
known the specific reasons for his suspension, he “would have been able to
struct ure his appeal to address the specific concerns of the Agency,” including
providing documentation to show he was fit for duty and that he had not
communicated with foreign nationals or had substance abuse issues. PFR File,
Tab 1 at 13-15. Even if the not ice of suspension of the appellant’s access to
classified information required more specificity, the appellant nevertheless
received the ROI, which provided the entire basis for the suspension of his access
to classified information , prior to his oral repl y to the proposed indefinite
suspension. Id. at 8. Moreover, the appellant’s written reply, submitted prior to
the date on which he allegedly received the ROI, addressed his mental health and
fitness for duty, as well as his disclosure of foreign contact s. IAF, Tab 8
at 30-41. There is no evidence that receiving a more detailed statement of the
reasons for suspen ding the appellant’s access to classified information or the ROI
at an earlier time would have changed the appellant’s response or the deciding
official’s decision regarding the charge or the penalty. We thus affirm the
administrative judge’s finding that the agency did not commit harmful procedural
error in applying SECNAV M-5510.30 § 9-7(2)(a) to the appellant .
The appellant has not establi shed that the administrative judge erred in finding
agency witnesses credible.
¶23 On review, the appellant argues that the administrative judge erred in
finding agency witness testimony cre dible. PFR File, Tab 1 at 14 -15.
17
Specifically, the appellant appears to argue that (1) the administrative judge
should not have found the testimony of the agency officials that suspended the
appellant’s access to classified information and proposed the indefinite
suspension credible because they did not know that the appel lant never received
the ROI, (2) the administrative judge should not have found the deciding
official ’s testimony credible because the testimony suggested that he did not
know material information before making his decision, and (3) the administrative
judg e did not take into account testimo ny that if the appellant did not receive the
ROI, then the notice of indefinite suspension would have been d efective. Id.
¶24 The Board must defer to an administrative judge’s credibility
determinations when they are based , explicitly or implicitly, on observ ing the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002). Although the Board may decline to defer
to an administrative judge’s credibility findings that are abbreviated, based on
improper considerations, or unsupported by the record, Redschlag v. Department
of the Army , 89 M. S.P.R. 589 , ¶ 13 (2001), it may not overturn an administrative
judge’s demeanor -based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372
(Fed. Cir. 2016) (quoting Haebe , 288 F.3d at 1299). Although the administrative
judge did not make detailed credibility findings, our review of the relevant
testimony reflects that his findings are support ed by the record. Although neither
the proposing official in the proposed indefinite suspension nor the proposing
official in the suspension of the appellant’s access to classified information
directly delivered the ROI, both testified that , to their know ledge, the appellant
had received the ROI and provided the basis of that knowledge. HCD (testimony
of the proposing official, testimony of the NCIS security officer). For example,
the official who proposed the appellant’s indefinite suspension testified that he
provided the ROI to his staff, who had an obligation to provide it to the appellant,
and the official who suspended the appellant’s access to classified information
18
testified that another official briefed him that the ROI was part of the disciplina ry
action. HCD (testimony of the proposing official, testimony of the NCIS security
officer). The appellant has not disputed the veracity of the agency officials’
testimony regarding the basis of their belief that the appellant received the ROI
and has t hus not provided a valid challenge to their credibility. We have
addressed above the appellant’s other two assertions regarding the testimony of
the deciding official and the testimony regarding the deficiencies in the notice
suspending the appellant’s ac cess to classified information and find them without
merit. Accordingly, we deny the appellant’s petition for review and affirm the
initial decision.
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 you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
9 Since the issua nce of the initial decision in this matter, the Board may have updated
the notice 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action t hat is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
20
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an a ppropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
21
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.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
10 The original statutory pr ovision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appe llants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is re troactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
22
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
Contact information for 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 | PREWITT_GREGORY_DC_0752_16_0598_I_1_FINAL_ORDER_2023287.pdf | 2023-04-19 | null | DC-0752 | NP |
3,251 | https://www.mspb.gov/decisions/nonprecedential/ALVARADO_MIGUEL_DE_0752_19_0325_I_1_FINAL_ORDER_2023319.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MIGUEL ALVARADO,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -19-0325 -I-1
DATE: April 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Stephen Coutant , Esquire, Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
¶2 After the appellant filed his petition for review, the parties signed a
document entitled “NEGOTIATED SETTLEMENT AGREEMENT” on March 29
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body 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
and 30, 202 3. PFR File, Tab 4 at 7. The document provides, among other
things, that the appellant agreed to withdraw and dismiss the above -captioned
appeal in exchange for promises by the agency . 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 ente red into a settlement agreement and
they understand its terms. 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 in stead provides for enforcement by the Equal Employment
Opportunity Commission (EEOC) .2 PFR File, Tab 4 at 6; see Grubb v.
Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997) (finding that the
parties intended the EEOC, not the Board, to enforce a settlement agreement).
As the parties do not i ntend for the Board to enforce the settlement agreement,
we need not address the additional considerations regarding enforcement and do
not enter the settlement agreement into the record for enforcement by the Board.
2 In response to an e -Appeal Online prompt when submitting the settlement agreement
in this appeal, the agency indicated that the parties agreed that the settlement agreement
would be entered into the r ecord for enforcement by the Board. PFR File, Tab 4 at 3.
However, the settlement agreement itself provides that, in the event of a breach, the
appellant may seek enforcement of the agreement before the EEOC. Id. at 6. As the
words of the agreement are of paramount importance in determining the intent of the
parties at the time they contracted, we find that the parties do not intend the settlement
agreement to be entered into the record for enforcement but instead for the appellant to
pursue enforcement through the alternate process specified in the agreement. See
Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988).
3
¶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 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 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 li mits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your part icular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such actio n
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
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
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.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 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.
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
If you are 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 | ALVARADO_MIGUEL_DE_0752_19_0325_I_1_FINAL_ORDER_2023319.pdf | 2023-04-19 | null | DE-0752 | NP |
3,252 | https://www.mspb.gov/decisions/nonprecedential/LEWIS_MOZEJKO_YOLANDA_DE_3330_21_0185_I_1_FINAL_ORDER_2023322.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
YOLANDA LEWIS -MOZEJKO,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DE-3330 -21-0185 -I-1
DATE: April 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Isaac P. Hernandez , Esquire, Phoenix, Arizona, for the appellant.
Lisa M. McGinnis , Esquire, San Francisco, California, 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
denied her request for corrective action in her Veterans Employment
Opportunities Act (VEOA) appeal on the grounds that she failed to provide the
agency with sufficient information to establish her entitlement to veterans’
preference. For the reasons set forth below, we VACATE the i nitial decision but
still DENY c orrective action, albeit on a different basis than that articulated in
the initial decision.
BACKGROUND
¶2 In 2019, the appellant was hired by the agency as a GS-8 Legal Assistant .
Initial Appeal File (IAF), Tab 12 at 22. As part of the selection process , the
agency awarded her a 10 -point veterans’ prefe rence for a compensable service
connected disability she had claimed in her application. IAF, Tab 6 at 117,
Tab 12 at 27 , Tab 34 at 19 . In 2020 , an agency human resources specialist was
reviewing the appellant’s electronic official personnel file (eOPF) when she
discovered that the only Department of Defense (DD) Form 214 , Certificate of
Release or Discharge f rom Active Duty, in the appellant’s eOPF reflected that she
received a bad conduct discharge upon her separation from the U.S. Army in
1988 . IAF, Tab 12 at 35, Tab 32 at 33 -34, Tab 35 at 29-30. Because the
appellant was unable , in response to the agency’s requests, to provide a DD -214
reflecting a discharge under honorable conditions, the agency amended her
Standard For m (SF) 50 to reflect no veteran s’ preference. IAF, Tab 6 at 11, 14,
96, Tab 31 at 9. After filing a complaint with the Department of Labor (DOL)
and receiving a close -out letter, the appellant filed a Board appeal contesting the
removal of her 10 -point veterans’ preference from her SF -50. IAF, Tab 1 at 2, 7 .
In respons e to the administrative judge’s jurisdictional order requiring the
appellant to file , among other things, a statement supporting her entitlement to
veterans’ preference and the agency’s violation of a statute or regulation relating
3
to veterans’ pre ference, the appellant claimed that she was entitled to veterans’
preference based on two periods of military service —from 1977 to 1979 and from
1979 to 1983 —for which she received honorable dis charges not reflected on her
DD-214, and that, among other stat utory violations, the agency committed several
prohibited personnel practices listed in 5 U.S.C. § 2302 (b). IAF, Tab 3 at 6 ,
Tab 6 at 1 -4. The appellant alleged that the agency violated additional statutes
over the course of the appeal , including 5 U.S.C. §§ 2108 , 2108a, 3304(f), and
38 U.S.C. § 511 . IAF, Tab 26 at 5-10, Tab 36 at 5 -10.3 The appellant waived the
hearing she initially requested. Tab 1 at 1, Tab 23 at 1.
¶3 The administrative judge denied the appellant corrective action in the initial
decision , finding that , although she established Board jurisdiction, she failed to
provide the agency with sufficient proof of a separation under honorable
conditions to establish that she was a preference elig ible under 5 U.S.C. § 2108 .
IAF, Tab 40, Initial Decision ( ID) at 7-11. In her petition for review , among
other arguments , the appellant contends that her honorable discharges for her
earlier periods of service were established by other competent evidence , including
letters from the Department of Veterans Affairs (DVA) which she claims must be
afforded deference under 38 U.S.C. § 511 , and asserts that the administrative
judge ignored her prohibited personnel practice arguments . Petition for Review
(PFR) File, Tab 1 at 4-9. The agency filed a response, to which the appellant has
replied. PFR File, Tabs 5, 6.
3 The appellant cites to various purported statutor y provisions that do not exist . IAF,
Tab 6 at 1 -2 (citing violations of “5 U.S.C. § 2301 (a)(1)(11)(A)(B) ” and “5 U.S.C.
§ 2302 (a)(1)(9)(A)(i )(ii)”); Tab 26 at 5 (citing “5 U.S.C. § 2018”). We assume that the
appellant intended to cite 5 U.S.C. § 2302 (b)(1), (9), (11), and 5 U.S.C. § 2108.
4
ANALYSIS
The appellant fails to show that the agency violated her rights under any statute
or regulation relating to veterans’ preference.
¶4 In 5 U.S.C. § 3330a (a)(1)(A), VEOA affords a preference eligible who
asserts that an agency has violated her rights under a statute or regulation
“relating to veterans’ preference ” with respect to Federal employment the right to
file a complaint with the Secretary of Labor. Beyers v. Department of State ,
120 M.S.P.R. 573 , ¶ 6 , aff’d per curiam , 593 F. App’x 980 (Fed. Cir. 2014) .
After she has exhausted her remedies with DOL , VEOA affords a preference
eligible the right to appeal the alleged violation to the Board. Id.; see 5 U.S.C.
§ 3330a (d). For purposes of this appeal, t he definition of a “preference eligible”
in 5 U.S.C. § 2108 (3) includes a “disabled veteran ” as defined in 5 U.S.C.
§ 2108 (2), which, for relevant purposes, is an individual who has been separated
from active duty service in the armed forces under honorable conditions, and has
established the present exis tence of a service -connected disability or is receiving
compensation because of a statute administered by the DVA . The benefits of
qualification as a preference eligible include preference in competitive
appointments and retention during reductions in for ce. E.g., 5 U.S.C. §§ 3309 ,
3502; see IAF, Tab 34 at 14.
¶5 As the administrative judge found, the only disput e regarding the
appellant’s claim to veterans’ preference is whether she was separated fr om
active duty service with the U.S. Army under honorable conditions. ID at 8 .
However, we need not decid e this issue because , even if the appellant qualifies as
a preference eligible, she has failed to show that the agency ’s actions violated her
rights under any statute or regulation relating to veterans’ preference.
¶6 Section 1208.23(a)(3) of title 5, Code of Federal Regulations , requires the
appellant in a VEOA appeal to provide a statement identifying the statute or
regulation relating to veterans’ prefere nce tha t was allegedly violated and an
explanation of how it was violated. On review, t he statutes or regulations the
5
appellant a lleges the agency violated include 5 U.S.C. §§ 2108 , 2108a, 3330a,
2302(b) (11), and 38 U.S.C. § 511. PFR File, Tab 1 at 6-16. She also alleged on
appeal that the agency violated 5 U.S .C. §§ 3304 (f),4 2301(b)(2) , 2302(b) (1), (2),
(9), (10), and (12) , and 2302(e)(1)( G). IAF, Tab 6 at 1 -4, Tab 26 at 5 -10, Tab 36
at 5-10.
¶7 In Dean v. Department of Agriculture, 99 M.S.P.R. 533 , ¶ 17 (2005), aff’d
on recons ideration , 104 M.S.P.R. 1 (2006) , the Board recognized that neither
VEOA nor any applicable regulation defines the phrase “relating to” as used in
5 U.S.C. § 3330a (a)(1)(A) . Accordingly , the Board applied the ordinary meaning
of that phrase , i.e., “‘stand[s] in some relation to,’ has a b earing on, concerns, and
‘has a connection with,’” to find that 5 U.S.C. § 3304 (b), a provision requiring
that an individual pass an examination in order to be appointed in the competitive
service unless specifically excepted, relates to veterans’ preference because it
ensures the application of veterans’ preference pr ovisions to competitive service
appointment s. Id. Other statutes and regulations have been found by the Board
to not relate to veterans’ preference, in some cases even when bearing a nexus
with military service. See Alford v. Department of Defense , 113 M.S.P.R. 263 ,
¶ 12 (2010) (finding a statute which provides for rates of annual leave accrual
based on years of service does not relat e to veterans’ preference despite setting
forth circumstances in which a person may receive service credit for active duty
military service ), aff’d per curiam , 407 F. App’x 458 (Fed. Cir. 2011) ; Simpkins
v. Department of Labor , 107 M.S.P.R. 651 , ¶¶ 19 -20 (2008) (finding provisions
regarding the requirement to pay interest on a deposit to receive service cre dit
under the Federal Employees Retirement System for prior military service do not
relate to veterans’ preference); Sherwood v. Department of Veterans Affairs ,
4 Although the appellant specifically cites 5 U.S.C. § 3304 (f)(3), IAF, Tab 26 at 5, we
construe her citation to refer to all of section 3304(f ) because subsection (f)(3) cannot
be read independently of the remainder of subsection (f).
6
88 M.S.P.R. 208 , ¶ 11 (2001) (finding the Americans with Disabilities Act does
not relate to veterans’ preference), modified on other grounds by Abrahamsen v.
Department of Veterans Affairs , 94 M.S.P.R. 377 , ¶ 7 (2003).
¶8 Among the provisions the appellant alleges the agency violated , the Board
has held that 5 U.S.C. § § 3304 (f) and 2108 are statutes “relating to veterans’
preference” for VEOA purposes. Walker v. Department of the Army ,
104 M.S.P.R. 96 , ¶ 16 (2006); Villamarzo v. Environmental Protection Agency ,
92 M.S.P.R. 159 , ¶ 8 n.1 (2002) ; see 5 U.S.C. § 2302 (e)(1)(A) . However, the
appellant’s allegation s of violations of these provisions fail on the merits for
other reasons . Section 3304(f) , which relates to a preference eligible or veteran’s
opportunity to compete for vacant positions, is inapplicable to this case because
the appellant does not allege, nor does the record establish, that she was ever
denied any opportunity to compete for a position. Indeed, the appella nt conceded
that her appeal is not based on her right to compete, IAF, Tab 13 at 5 , and the
agency hired her based on a 10-point veterans’ preference she claimed in her
application , IAF, Tab 6 at 117, Tab 12 at 27, Tab 34 at 19. The appellant’s
allegation of a viola tion of 5 U.S.C . § 2108 fails to state a claim because
section 2108 only prescribes , for relevant purposes, the definition of the term
“preference eligible ” referenced in other provisions of the U.S. Code , and does
not itself grant employees who fall within that definition any rights.
¶9 Using the method to determine whether a statute or regulation relates to
veterans’ preference employed in Dean , several of the other statutes the appellant
alleges were violated could be said to stand in some relation to, have a bearing
on, concern, and have a connection with veterans’ prefere nce rights , namely
5 U.S.C. §§ 2108a , 3330a , 2302(b)(11) , and 2302(e)(1)(g) . However, to the
extent that these statutes do relate to veterans’ preference fo r VEOA purposes, the
appellant’s claims of their violations fail on the merits for other reasons .
¶10 Section 2108a, which extends veterans’ preference rights to individuals who
are still serving on active duty in the armed force s, is inapplicable because the
7
appellant is no longer serving on active duty . Her claim of a violation of
5 U.S.C. § 3330a fails because that provision only provides for avenues of
administrative redress under VEOA, and the appellant does not appear to allege,
nor is there any indication in the record , that the agency violated her rights to
seek such redress . Section 2302(b)(11) proscribes the taking, recommending, or
approving, or failure to take, recommend, or approve, a “personnel action” as
defined in section 2302(a)(2)(A) in violation of a “veteran s’ preference
requirement ” enumerated in section 2302(e)(1), but the appellant failed to
demonstrate that the agency actions at issue , which amounted to an inquiry and
discussions regarding her entitlement to veterans’ preference and the removal of
the veterans’ preference code from her SF -50, related to any “personnel action .”
As the appellant conceded, her appeal is not related to her being “non -selected,
hired, promoted and/or being terminated,” nor has she been suspended, is she
seeking reinstatemen t to a position, or has she lost any wag es or benefits. IAF,
Tab 13 at 4-5, Tab 24 at 2, Tab 26 at 5, 9. The appellant also fails to establish a
violation of section 2302(b)(11) because she fails to show a violation of any of
the veterans’ preferen ce req uirements in section 2302(e)(1), and even if she did
establish a violation of section 2302(b)(11), section 2302(e)(2) states that “no
authority to order corrective action shall be available in connection with a
prohibited personnel practice described in [§ 2302] (b)(11).”5 Lastly among the
statutes in this category, section 2302(e)(1)(G) includes within the veterans’
preference requirements “[a]ny other provision of law that the Director of the
Office of Personnel Management (OPM) designates” as such in reg ulations. The
appellant’s conclusory allegation that “[e]ach and every provision of law within
[section 2302(e)(1)(G) ] has been violated,” IAF, Tab 26 at 8, fails because it does
5 To the extent the appellant seeks intervention of the Office of the Special Counsel
(OSC) for the agency’s alleged prohibited personnel practices , PFR File, Tab 1 at 5, 14 ,
because we have found no evidence that the agency committed a prohibited personnel
practice, we see no reason to refer this matter to OSC under 5 U.S.C. § 1221 (f)(3).
8
not identify any specific provision designated as a veterans’ preference
requirement by the Director of OPM, nor does it describe how any such provision
was violated .
¶11 The remainder of the statutes the appellant alleges the agency violated do
not relate to veterans’ preference, and her allegations of their violation
accordingly fail to state a claim upon which relief can be gra nted. Simpkins ,
107 M.S.P.R. 651 , ¶¶ 20 -21. Alt hough a statute n eed not recite the term
“veteran” in order to be a statute relating to veterans’ preference, Dean v.
Department of Labor , 808 F.3d 497, 502 (Fed. Cir. 2015), case law indicate s that
a statute or regulation must, at minimum, bear some nexus to a mechanism
through which veterans’ preference operates , such as 5 U.S.C. § 3304 (b) and
competitive service appointments, Dean, 99 M.S.P.R. 533 , ¶ 17. Under this
principle , 5 U.S.C. § 2 301(b)(2), the merit system principle exhorting fair and
equitable treatment and regard for individuals’ privacy and constitutional rights,
section 2302(b)(1), which prohibits discrimination on the basis of race, color,
religion, sex, national origin, age, di sability, marital status, or political affiliation ,
section 2302(b) (2), which relates to solicitation or consideration of
recommendations or statements with respect to a n individual who requests or is
under consideration for a personnel action, section 2302(b)(9), which prohibits
retaliation for certain activities , such as filing appeals, complaints, or grievances,
section 2302(b)(10) , which prohibits discrimination on the basis of conduct
unrelated to job performance, section 2302(b) (12), which protects against
violations of the merit system principles, or 38 U.S.C. § 511 , which pertains to
the finality of decisions of the Secretary of Veterans Affairs affecting DVA
benefits, do not stand in some relation to, have a bearing on, concern, or have a
connection with veterans’ preference rights , and the appellant’s claims of their
violation do not entitle her to relief under VEOA. See Simpkins , 107 M.S.P.R.
9
651, ¶ 20.6 We thus find that the appellant’s allegations that the agency violated
her rights under any of the statutes or regulations she identifies fa il to state a
claim for which relief can be granted under VEOA .7
6 Though we need not address the appellant’s claims under these statutes further, they
fail on the merits for additional reasons. The appellant’s allegation that the agency
violated her privacy and constitutional rights under 5 U.S.C. § 2301 (b)(2), IAF, Tab 26
at 7, fails because she does not describe, nor does the record reveal, any act by the
agency that violated her privacy as set forth in any legal authority or any constitutional
right. The appellant’s claims of violatio ns of section 2302(b) (1), (2), (9), (10), and (12)
fail for one of the same reasons as her allegation under section 2302(b)(11) —because
she fails to make the required show ing that any “personnel action” occurred or failed to
occur , as required to establish a prohibited personnel practice . Finally, though the
appellant alleges that the agency failed to credit DVA letters stating that she was
honorably discharged from the U.S. Army in violation of 38 U.S.C. § 511 , decisions by
the Secretary of Veterans Affairs to be accorded finality under that statute are limited to
those as to “such questions” that are “necessary to a decision by the Secretary under a
law that affects the provisions of benefits” by the DVA. 38 U.S.C. § 511 (a).
Accordingly, courts have held that decisions of the Secretary of Veterans Affairs to be
given conclusive effect under 38 U.S.C. § 511 are only those which affect the provision
of benefits awarded by the DVA. E.g., Butler v. United States , 702 F.3d 749 , 753 (4th
Cir. 2012 ) (finding that 38 U.S.C. § 511 (a) did not preclude a district court from
making independent decisions of fact and law in a Federal Tort Claims Act suit based
on the death of the appellant’s husband despite the appellant’s contention that the court
was bound by the DVA’s decisions in its adjudication of her death benefits claim); see
Mynard v. Office of Personnel Management, 108 M.S.P.R. 58 , ¶ 14 (2008) ( decisions of
courts other than the U.S. Court of Appeals for the Federal Circuit, although not
binding on the Board outside the context of cer tain whistleblower reprisal cases, may be
followed if the Board finds the reasoning persuasive) . Because, as the appellant has
conceded, an adverse decision by the agency on her claim to veterans’ preference would
not affect her DVA benefits, IAF, Tab 36 at 9, 38 U.S.C. § 511 does not prevent the
agency from making an independent determination as to her entitlement to veterans’
preference.
7 The appellant’s additional arguments also do not afford her relief. For instance, she
alleges on review that the administrative judge, among other errors, failed to follow the
mission of the Board and violated his oath as a judge under 28 U.S.C. § 453 . PFR File,
Tab 1 at 13. Notwithstanding the in applicability of 28 U.S.C. § 453 to administrative
judges of the Board, we find nothing to support these conclusory allegations in the
record. The appellant also assert s that the agency discrimina ted against her regarding
her military service as evidence of an allegation of a prohibited personnel practice
under 5 U.S.C. § 2302 (b). IAF, Tab 6 at 1 ; PFR File, Tab 1 at 16. It does not appear
that the appellant intended to raise an independent discrimination claim under the
Uniformed Services Employment and Reemployment Rights Act (USERRA) , as she
10
¶12 This decision does not preclude the appellant from filing a new Board
appeal, after exhausting her remedy with DOL, should she suffer some action in
the future that violates a right to which she may establish her entitlement under
any statute or regulation relating to veterans’ preference. Any such appeal must
be filed in accordance with the Board’s regulations. Nothing in this Final Order
is intended to prevent the appellant from filing a r equest to amend her SF -50
under the Privacy Act, according to the procedures of 5 U.S.C. § 552a (d)(2).
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal 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.
withdrew her USERRA complain t with DOL before her Board appeal . IAF, Tab 6 at 2,
30. Accordingly , we decline to address this argument .
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 opt ion is most appropriate in any matter.
11
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals 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
12
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 accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of ap peals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | LEWIS_MOZEJKO_YOLANDA_DE_3330_21_0185_I_1_FINAL_ORDER_2023322.pdf | 2023-04-19 | null | DE-3330 | NP |
3,253 | https://www.mspb.gov/decisions/nonprecedential/REDUS_VANESSA_AT_0353_17_0132_I_1_REMAND_ORDER_2023369.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VANESSA REDUS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0353 -17-0132 -I-1
DATE: April 19, 2023
THIS ORDER IS NONPRECEDENTIAL*
Vanessa Redus , Cordova, Tennessee, pro se.
Sandra W. Bowens , Esquire, Memphis, Tennessee, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellant has filed a petition for rev iew of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review , VACATE the
initial decision, and REMAND the case to the regional office for furthe r
adjudication in accordance with this Remand Order.
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The agency employs the appellant as a Mail Processing Clerk. Initial
Appeal File (IAF), Tab 1 at 1 , Tab 5 at 8 . She suffered compensable injuries in
2003 and 2005. IAF, Tab 5 at 9 ; Petition for Review (PFR) File, Tab 1 at 3 . On
July 6, 2015, her doctor completed a Form CA -17 (Duty Status Report) that
cleared her to resume work with in certain medical restrictions. IAF, Tab 5 at 3.
She forwarded th e form to the agency’s Injury Compe nsation Specialist, seeking
restoration as a partially recovered employee. Id. at 1. The agency offered the
appellant a modified limited duty assignment dated October 1, 2015, but she
declined it because she claimed that the physical requireme nts of the modified
assignment were outside her medical restrictions. IAF, Tab 10 at 1, 6. The
appellant alleged that she submitted additional Forms CA -17 to the Injury
Compensation Specialist in the subsequent months. IAF, Tab 5 at 1, 4 -7. As a
result of a Form CA-17 dated January 12, 2017, the agency offered her a different
modified limited duty assignment on January 18, 2017, which she accepted. IAF,
Tab 10 at 1, 4 -5; PFR File, Tab 1 at 1.
¶3 On November 21, 2016, the appellant filed an appeal alleging that the
agency improperly denied her request for restoration as a partially recovered
employee beginning in July 2015 and that the agency discriminated against her
based on her disability. IAF, Tab 1. Without holding the requested hearing, the
administrative ju dge issued an initial decision dismissing the appeal for lack of
jurisdiction . IAF, Tab 19, Initial Decision (ID). She found that the appellant
made nonfrivolous allegations that she was absent from work due to a
compensable injury and that she recovered sufficiently to return to duty on a
part-time basis or in a position with less demanding physical requirements than
those previously required of her. ID a t 7. She found, however, that the appellant
failed to nonfrivolously allege that the agency denied her request for restoration
because she did not prove that the October 2015 modified assignment offer was
outside her medical restrictions. ID at 8. She then found that, even if the
3
appellant had nonfrivolously alleged a denial of restoration , she failed to
nonfrivolously allege that the denial was arbitrary and capricious because she
admitted that she did not appear for investigative interviews regarding her
extended absence . ID at 8 -9. She further found that the Board lacked jurisdiction
to consider the appellant’s disability discrimination claim in the absence of an
otherwise appealable action. ID at 9.
¶4 The appellant has filed a petition for review. PFR File, Tab 1. The agency
has responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUM ENTS ON REVIEW
¶5 The Board has jurisdict ion to review whether an agency’ s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103 –04 (Fed. Cir.
2011), modified in part by regulation as stated in Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365 , ¶ 10 (2016); 5 C.F.R. § 353.304 (c). To establish jurisdiction
and obtain a hearing on the merits, an appellant must make the following
nonfrivolous allegations : (1) she was absent from her position due to a
compensable injury; (2) she recovered sufficiently to return to duty on a part -time
basis or to return to work in a position with less demanding physical requirements
than those previously required of h er; (3) the agency denied h er request for
restoration; and (4) th e agency’s denial was arbitrary and capricious. Kingsley ,
123 M.S.P.R. 365 , ¶ 11 ; 5 C.F.R. § 1201.57 (a)(4), (b).
¶6 While this appeal was pending on review, the Board issued a decisio n
clarifying the jurisdictional standard in partial restoration appeals. Cronin v. U.S.
Postal Service , 2022 MSPB 13. In Cronin , the Board found that a denial of
restoration is arbitrary and capricious if —and only if —the agency failed to meet
its obligations under 5 C.F.R. § 353.301 (d). Id., ¶ 20. The Board explicitly
overruled Latham v. U.S. Postal Service , 117 M.S.P.R. 400 (2012), and its
progeny to the extent such precedent held that a denial of restoration may be
4
arbitrary and capricious based on an agency’s failure to comply with its
self-imposed restoration obligations, such as those provided in the agency’s
Employee an d Labor Relations Manual. Id. Accordingly, to establish jurisdiction
under the fourth jurisdictional element, an appellant must make a nonfrivolous
allegation that the agency failed to comply with the minimum requirement of
5 C.F.R. § 353.301 (d), i.e. , to search within the local commuting area for vacant
positions to which it can restore a partially recovered employee and to consider
her for any such vacancies. Id.
¶7 Here, the parties did not have the benefit of the Board’s decision in Cronin
during the proceedings below , and we are unable to determine whether the
appellant met her jurisdictional burden based on the record before us . Therefore,
we remand the case to the regional office to allow the parties an opportunity to
submit evidence and argument supporting their positions under the clarified
jurisdictional standard. We advise the parties that, under Cronin , an offer of a
mod ified limited duty assignment —even one within an employee’s medical
restrictions —without evidence that the agency conducted a proper search for
vacant positions within the local commuting area does not meet the minimum
requirement of 5 C.F.R. § 353.301 (d). Cronin , 2022 MSPB 13, ¶ 20.
¶8 Should the appellant establish jurisdiction over her appeal on remand , the
administrative judge must adjudicate the appellant’s disability discrimination
claim. See Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶¶ 20-21.
5
ORDER
¶9 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 | REDUS_VANESSA_AT_0353_17_0132_I_1_REMAND_ORDER_2023369.pdf | 2023-04-19 | null | AT-0353 | NP |
3,254 | https://www.mspb.gov/decisions/nonprecedential/MONTGOMERY_RONNIE_AT_0752_20_0275_I_3_REMAND_ORDER_2023383.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONNIE MONTGOMERY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -20-0275 -I-3
DATE: April 19, 2023
THIS ORDER IS NONPRECEDENTIAL1
Peggy Lee , Esquire, Memphis, Tennessee, for the appellant.
Eric B. Fryda , Esquire, Dallas, Texas, for the agency.
James M. Reed , Esquire, Clearwater, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
(1) reversed his placement on enforced leave , (2) found that he proved his
affirmative defense of union reprisal , (3) found that he failed to prove his
affirmative defenses of disability discrimination, reprisal based on equal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
employment opportunity (EEO) activity, harmful procedural error, and violation
of his due process rights , (4) dismissed his claim arising under the Family and
Medical Leave Act (FMLA) for lack of jurisdiction , and (5) dismissed his race
discrimination claim as untimely raised . For the reasons discussed below,
we GRANT the a ppellant’s petition for review. We AFFIRM the administrative
judge’s reversal of the enfo rced leave action and the following findings:
the appellant proved his affirmative defense of reprisal for union activity;
the appellant failed to prove his affirmative defenses of disability discrimination,
EEO reprisal, harmful procedural error, and vio lation of due process rights;
and the Board lacks jurisdiction over the appellant’s FMLA claim s.
We VACATE the finding that the appellant failed to timely raise an affirmative
defense of race discrimination , and we REMAND the appeal to the regional
office for further adjudication of that defense in accordance with this Remand
Order.
BACKGROUND
¶2 On March 16, 2022, the administrative judge issued the initial decision in
this matter . Montgomery v. U.S. Postal Service , MSPB Docket No. AT -0752 -20-
0275 -I-3, Appeal File (0275 I -3 AF), Tab 17, Initial Decision (0275 ID).2
2 This appeal was dismissed without prejudice and refiled twice. Hereinafter, the
appellant’s first appeal file, Montgomery v. U.S. Postal Service , MSPB Docket No.
AT-0752 -20-0275 -I-1, will be refer red to as the Initial Appeal File (0275 IAF); the
refiled appeal file, Montgomery v. U.S. Postal Service , MSPB Docket No. AT -0752 -20-
0275 -I-2, will be referred to as the I -2 Appeal File (0275 I -2 AF); and the second
refiled appeal file, Montgomery v. U.S. Postal Service , MSPB Docket No. AT -0752 -20-
0275 -I-3, will be referred to as the I -3 Appeal File (0275 I -3 AF).
The appellant has a second appeal concerning his claim that the agency violated his
rights under the Uniformed Services Employment and Reemploym ent Rights Act of
1994 ( USERRA ). That appeal was dismissed without prejudice and refiled twice.
Hereinafter, the appellant’s first appeal file in the USERRA matter, Montgomery v. U.S.
Postal Service , MSPB Docket No. AT -4324 -20-0730 -I-1, will be referred to as the
Initial Appeal File (0730 IAF); the refiled appeal file in the USERRA matter,
Montgomery v. U.S. Postal Service , MSPB Docket No. AT -4324 -20-0730 -I-2, will be
referred to as the I -2 Appeal File (0730 I -2 AF); and the second refiled appeal file,
3
The initial decision explained that it would become final on April 20, 2022 ,
unless a petition for review was filed by that date . Id. at 19. Neither p arty filed
a petition for review by that date; however, 21 days later, o n May 11, 2022,
the appellant filed this petition for review, wherein he asserted the following:
(1) the administrative judge erred in finding that the appellant did not timely
raise his affirmative defense of race discrimination ; and (2) the administrative
judge erred in dismissing his claim s arising under the FMLA and the Wounded
Warriors Federal Leave Act of 2015 (WWFLA) for lack of jurisdiction.
Montgomery v. U.S. Postal Service , MSPB Docket No. AT -0752 -20-0275 -I-3,
Petition for Review ( 0275 PFR) File, Tab 1 at 5-8. The agency has not filed a
response.3
DISCUSSION OF ARGUME NTS ON REVIEW
We find good cause to waive the filing deadline for the appellant’s petition for
review, which was untimely by 21 days.
¶3 The appellant’s petition for review is untimely by 21 days . See 5 C.F.R.
§ 1201.114 (e) (providing that a petition for review must generally be filed within
35 days of issuance of the initial decision). The Board will waive its filing
deadline only upon a showing of good cause for t he delay in filing. 5 C.F.R.
§ 1201.114 (g). To determine whether an appellant has shown good cause for the
untimely filing of an appeal , the Board will consid er the length of the delay,
the reasonableness of his excuse and his showing of du e diligence, whether he is
Montgomery v. U.S. Postal Service , MSPB Docket No. AT -4324 -20-0730 -I-3, will be
referred to as the I -3 Appeal File (0730 I -3 AF).
3 After the close of the record on review, the appellant filed a pleading titled, “Petition
for Enforcement of Interim Relief.” 0275 PFR File, Tab 4. The agency has filed a
response , and the appellant has filed a reply. 0275 PFR File, Tabs 5 -6. The appellant’s
petition for enforcement is denied because the Board’s regulations do not allow for a
petition for enforcement of an i nterim relief order . Bryant v. Department of the Army ,
2022 MSPB 1 , ¶ 6. If the appellant believes that the agency is not in compliance with
this Order, he may file a petition for enforcement with the regional office in accordance
with ¶ 15.
4
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Moorman v.
Department of the Army , 68 M.S.P.R. 60 , 62-63 (1 995), aff’d , 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
¶4 We find that the appellant has established goo d cause for his untimely
filing. Although it appears that he was confused about Board procedures,
he acted diligently in pursuing this petition for review , as set forth herein .
On February 12, 2020, the appellant filed a Board appeal concerning his
placement on enforced leave. 0275 IAF, Tab 1 at 3, 9-11. The appeal was
dismissed without prejudice and the n refiled in August 2020 . 0275 I -2 AF,
Tab 1. In his refiled appeal, the appellant asserted that the agency violated his
rights under the Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA). Id. at 5. The administrative judge docketed the USERRA
appeal under a separate doc ket number. 0730 IAF, Tab 1. This appeal ,
concerning the enforced leave action , and the second appeal , alleg ing that the
agency violated the appellant’s USERRA rights , were pending before the
administrative judge simultaneously. On March 2 and 3, 2022, the
administrative judge conducted a joint hearing on both app eals and, on
March 16, 2022, he issued a separate initial decision in each matter . 0275 ID;
0730 -I-3 AF, Tab 20, Initial Decision (0730 ID) . Both initial decisions
contained a notice stating t hat the decisions would become final on April 20,
2022, unless a petition for review was filed on or before that da te. 0730 ID at 8;
0275 ID at 19.
¶5 On April 20, 2022, the appellant filed a request for an extension of time to
file a petition for review of the initial decision finding that the agency did not
violate his USERRA rights. Montgomery v. U.S. Postal Service , MSPB Docket
No. AT -4324 -20-0730 -I-3, Petition for Review ( 0730 PFR ) File, Tab 1. His
5
request was granted by the Clerk of the Board (Clerk ). 0730 PFR File, Tab 2.
The appellant did not request an extension of time to file a petition for review of
the initial decision reversing his placement on enforced leave and ruling on his
affirmative defenses .
¶6 In accordance with the Clerk’s extension order, on April 26, 202 2, the
appellant time ly filed a petition for review of the initial decision finding that the
agency did not violate his USERRA rights. 0730 PFR File, Tab 3. The petition
for review bore the docket numbers for both the USERRA appeal and the
enforced leave appeal , and it contained argument relevant to both appeals.
Id. at 5-11. On April 26, 202 2, the Clerk issued a letter informing the appellant
that the appeals had not been joined and, if the appellant wished to file a petition
for review of the initial decision that reversed his placement on enforced leave ,
he must either file a notice with the Clerk regarding his intent to construe the
petition for review under both docket numbers or file a separate peti tion
for review in the enforced leave appeal . 0730 PFR Fil e, Tab 4 at 1 n.*.
On May 11, 2022, the appellant filed the instant petition for review , wherein
he repeated arguments that were already raised in the petition for review that
was filed in the USE RRA matter . Compare 0275 PFR File, Tab 1 ,
with 0730 PFR File, Tab 3.
¶7 When, as here, an appellant asserts that he has delayed filing a petition for
review due to confusion, the Board has held that the confusion must relate to a
specific ambiguity in the in structions he received or in Board procedure. Noble
v. U.S. Postal Service , 73 M.S.P.R. 59 , 63 (1997). Based on the record, it
appea rs that the appellant was confu sed about the requirement to file a separate
petition for review concerning each initial decision and that he intended his
April 26, 2022 petition for review, which was filed in the USERRA matter , to
apply to both appeals . 0730 PFR File, Tab 3. After the Clerk notified the
appellant that it was construing his April 26, 2022 petition for review as
applying only to the USERRA appeal, the appellant filed a petition for review of
6
the initial decision reversing the enforced l eave action. 0275 PFR File, Tab 1.
The petition for review in the enforced leave a ppeal repeats arguments that the
appellant already raised in the April 26, 2022 petition for review . Compare 0275
PFR File, Tab 1, with 0730 PFR File, Tab 3. We note that the April 26, 2022
petition for review was timely filed in accordance with the Clerk’s extension
order, and we find it is plausible that the appellant believed that the extension
request applied to both appeals . 0730 PFR File, Tabs 1 -4. We have consider ed
that the appellant indicated he was acting pro se at the time of filing his petition
for review and the agency has not filed a brief in opposition to the appellant’s
petition for review or alleged any prejudice to its substantive rights arising out of
any filing delay . See Moorman , 68 M.S.P.R. at 62-63. Accordingly, we find that
good cause exists to waive the filing deadline.
We remand this appeal for consideration of the appellant’s affirmative defense of
race discrimination.
¶8 On review, the appellant asserts that the administrative judge did
not adjudicate his affirmative defense of race disc rimination. 0275 PFR File,
Tab 1 at 5 -6. In the initial decision , the administrative judge noted that the
appellant submitted evidence r elated to a race discrimination claim , but he found
that the appellant had failed to raise the claim prior to or during the prehearing
conference and effectively dismissed the claim as untimely . 0275 ID at 11 n.8
(quoting 5 C.F.R. § 1201.24 (b) (stating tha t an appellant may not raise
an affirmative defense for the first time after the prehearing conference, except
for good cause shown )). We disagree. The appellant included reference to race
discrimination in both his initial appeal and in hi s prehearing submissions.
0275 IAF, Tab 1 at 15; 0275 I -3 AF, Tab 8 at 5. Accordingly, we find that the
appellant timely raised an affirmative defense of race discrimi nation and remand
is warranted to adjudicate this claim .4 Alarid v. Department of the Army ,
4 Although we acknowledge that the administrative judge found that the appellant’s
evid ence concerning his race discrimination claim app eared to be altered, 0275 ID at 11
7
122 M.S.P.R. 600 , ¶ 7 (2015) (findin g that remand was warranted for
adjudication of affirmative defenses that were timely raised during the
proceedings but were not considered at the hearing).
¶9 Although not raised by the appellant is his petition for review, we note that
his second refiled appeal contains additional affirmative defenses that were not
adjudicated by the administrative judge, including sex discrimination, retaliation
for reporting unsafe working conditions, and alleged violations of the collective
bargaining agreement. 0275 I -3 AF, Tab 1 at 7 -12. Pursuant to Thurman v. U.S.
Postal Service , 2022 MSPB 21 , ¶ 18, we find that the appellant has abandoned
these claims for the following reasons: (1) he provided little to no argument in
support of these defenses in his refiled appeal or in any other filing; (2) there is
no evidence that the appellant continued to pursue these defenses after raising
them in his second refiled appeal, and he did not raise them in his prehearing
submission, 0275 I -3 AF, Tab 8; (3) the appellant did not object to the
administrative judge’s prehearing conference orders, which did no t list these
affirmative defenses, 0275 I -2 AF, Tab 9 at 2 -7; 0275 I -3 AF, T ab 9 at 2-5;
(4) the appellant did not raise these issues in his petition for review; (5) the
appellant was represented throughout th e course of the appeal, up to,
and including at , the hearing; and (6) there is no evidence in the record that the
appellant was confused about abandonment of these claims. Sparse information
regarding a potential affirmative defense, like the appellant provided in his
second refiled appeal , amounts to little more than a pro forma allegation of
n.8, remand is required in any event because the appellant was not advised of his
burden and methods of proof for proving an affirmative defense of race discrimination.
See Wynn v. U.S. Postal Service , 115 M.S.P.R. 146 , ¶¶ 12 -13 (2010) (holding that ,
when an administrative judge does not inform the part ies of their burden and methods
of proof, the Board must remand the appeal so that the administrative judge can afford
such notice and an opportunity to submit evidence and argument) , overruled in part on
other grounds by Thurman v. U.S. Postal Service , 2022 MSPB 21 .
8
wrongdoing, which supports a finding of abandonment. See Thurman ,
2022 MSPB 21 , ¶ 19.
We affirm the administrative judge’s finding that the Board lacks jurisdiction
over the appellant’s FMLA claims.
¶10 The appellant also argues on review that the agency denied him the
ability to use “paid medical leave” pursuant to the FMLA and the WWFLA.
0275 PFR File, Tab 1 at 6 -8. Regarding the WWFLA, the administrative judge
noted in the initial decision in the appellant’s USERRA appeal that the appellant
failed to present evidence that the agency denied a request for leave pursuant to
the WWFLA. 0730 ID at 7. As to the appellant’s FMLA claim,
the administrative judge correctly noted the appellant may invoke t he FMLA as a
defense to a leave -related action, such as a charge of absent without leave ,
but alleged FMLA violations are not an independent caus e of action before the
Board . 0275 ID at 15-16 (citing Lua v. U.S. Postal Service , 87 M.S.P.R. 647 , ¶
12 (2001 )). In any event, b ecause the administrative judge reversed the enforced
leave action on the merits and ordered back pay, there is no need to adjudicate
the appellant’s FMLA or WWFLA claims because there is no additional relief
that the Board could order in connection with those claims . See Hess v. U.S.
Postal Service , 123 M.S.P.R. 183 , ¶ 8 (2016) (dismissing an affirmative defense
wherein the underlying personnel action was rescinded and there was no
additional relief that the Board could order in connection with that defense).
ORDER
¶11 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with t his Remand Order. On remand,
the administrative judge shall inform the appellant of his burden of proof
regarding his affirmative defense of race discrimination, afford the parties
an additional opportunity to conduct discovery on this issue, and hold a
supplemental hearing, if requested. The administrative judge shall issue a new
9
initial decision that addresses the appellant’s affirmative defense of race
discrimination and its effect on the outcome of the appeal, if any.5
¶12 Notwithstanding the remand pr oceedings on the appellant’s race
discrimination claim, w e ORDER the agency to cancel the appellant’s placement
on enforced leave and restore the appellant to duty effective January 13, 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.
¶13 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.
¶14 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
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).
¶15 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
5 The Board ’s regulations provide that a request for attorney fees must be made within
60 days after issuance of a fina l decision, 5 C.F.R. § 1201.203(d) . In this case, the time
limit for filing such a request will not begin to run until the decision on remand is
final. See Aldridge v. Department of Agriculture , 111 M.S.P.R. 670 , ¶ 23 n.4 (2009).
10
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).
¶16 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.
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 i s 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 l ater reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt fr om the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and s ubmit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Sev erance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Rest oration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | MONTGOMERY_RONNIE_AT_0752_20_0275_I_3_REMAND_ORDER_2023383.pdf | 2023-04-19 | null | AT-0752 | NP |
3,255 | https://www.mspb.gov/decisions/nonprecedential/MONTGOMERY_RONNIE_AT_4324_20_0730_I_3_REMAND_ORDER_2023399.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONNIE MONTGOMERY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-4324 -20-0730 -I-3
DATE: April 19, 2023
THIS ORDER IS NONPRECEDENTIAL1
Ronnie Montgomery , Horn Lake, Mississippi, pro se.
Eric B. Fryda , Esquire, Dallas, Texas, for the agency.
James M. Reed , Esquire, Clearwater, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which denied corrective action in his Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) appeal . For the reasons discussed
below, we GRANT the appellant’s petition for review, AFFIRM the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
decision insofar as it denied the appellant’s USERRA discrimination claim
regarding his placement on enforced leave, and REMAND the case to the regional
office for further adjudication of the appellant’s USERRA hostile work
environment claim in accordance with this Remand Order.
BACKGROUND
¶2 The appellant filed an appeal of his placement on enforced leave to the
Board . Montgomery v. U.S. Postal Service , MSPB Docket No. AT -0752 -20-0275 -
I-1, Initial Appeal File, Tab 1. He alleged, in part, that his placement on enforced
leave violated his USERRA rights . Id. at 15. The administrative judge docketed
a new appeal concerning the appellant’s USERRA claims while the first appeal
concerning the merits of the appellant’s placeme nt on enforced leave and his
affirmative defenses proceeded simultaneously . Montgomery v. U.S. Postal
Service , MSPB Docket No. AT -4324 -20-0730 -I-1, Initial Appeal File, Tab 1 .
After finding jurisdiction over the USERRA appeal, the administrative judge he ld
a joint hearing on both appeals. Montgomery v. U.S. Postal Service , MSPB
Docket No. AT -4324 -20-0730 -I-3, Appeal File (0730 I -3 AF), Tab 20,
Initial Decision (ID) at 1. In the USERRA matter, the administrative judge issued
an initial decision finding that the appellant failed to prove by preponderant
evidence that his uniformed service was a substantial or motivating factor in the
agency’s decision to place him on enforced leave and denying corrective action .
ID at 6-8. The appellant has filed a timel y petition for review, wherein he asserts
that the administrative judge denied him adequate discovery in his USERRA
appeal and that the administrative judge did not apprise him of his burden of
proof as to his hostile work environment claim arising under USERRA.
Montgomery v. U.S. Postal Service , MSPB Docket No. AT-4324 -20-0730 -I-3,
Petition for Review (PFR) File, Tabs 1-3. The appe llant has also made several
challenges to findings contained in the initial decision in his other appeal .
PFR File, Tab 3 at 6 -11. The agency has not filed a response.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶3 We first address the appellant’s assertion that he w as denied adequate
discovery in his USERRA appeal . PFR File, Tab 3 at 5. Under 5 C.F.R.
§ 1201.41 (b)(4), an administrative judge has broad discretion in ruling on
discovery matters. The Board will not reverse an administrative judge’s rulings
on discovery matters absent an abuse of discretion. Wagner v. Environmental
Protection Agency , 54 M.S.P.R. 447 , 452 (1992), aff’d , 996 F.2d 1236 (Fed. Cir.
1993) (Table). On review, the appellant has not described t he evidence he hoped
to obtain i n discovery or explain how his rights were prejudiced by the alleged
denial of this eviden ce. PFR File, Tab 3 at 5. Accordingly, we find that he has
failed to establish that the administrative judge abused his discretion in his
discovery rulings . See Wagner , 54 M.S.P.R . at 45 1-52.
¶4 On review, the appellant reasserts that his placement on enforced leave
violate d his rights under USERRA. PFR File, Tab 3 at 8 -10. Howe ver, he has
not specifically challenged any findings in the initial decision. Id. We find no
error in the administrative judge’s conclusion that the appellant failed to prove
that the enforced leave was discriminatory based on his military service , and we
therefore affirm it. ID at 6 -8.
¶5 Next , we consider the appellant’s argument that he was not informed of his
burden of proof to establish a hostile work environment claim unde r USERRA.
PFR File, Tab 3 at 6. We have reviewed the appellant’s filings before the
administrative judge and we find that they are sufficient to timely raise a hostile
work environment claim under USERRA and that the appellant should have
received notice of his burden of proof to establish such a claim . E.g.,
Montgomery v. U.S. Postal Service , AT -4324 -20-0730 -I-2, Appeal File,
Tab 5 at 6. The administrative judge does not appear to have acknowledged this
claim and did not provide the appellant with the required notice . 0730 I-3 AF,
Tab 11 at 1-4. Accordingly, we remand t his claim to the regional office and
instruct the administrative judge to advise the appellant of his jurisdictional
4
burden to establish a claim of hostile work environment under USERRA . See
Lazard v. U.S. Postal Service , 93 M.S.P.R. 337 , ¶ 9 (2003) (remanding a
USERRA appeal wherein the administrative judge did not apprise the appellant of
his burden of proof and methods of proving his claims). If the administrative
judge finds that the appellant has establishe d jurisdiction over his claim of hostile
work environment under USERRA, the administrative judge shall allow discovery
as to this claim and hold a new hearing, if requested.
¶6 We acknowledge the appellant’s remaining arguments in his petition for
review, which relate to findings conta ined in the i nitial decision in the
enforced leave matter, Montgomery v. U.S. Postal Service , MSPB Docket
No. AT-0752 -20-0275 -I-3. We have addressed those arguments in the Remand
Order in that appeal and therefore we do not address them here .
ORDER
¶7 For t he 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 | MONTGOMERY_RONNIE_AT_4324_20_0730_I_3_REMAND_ORDER_2023399.pdf | 2023-04-19 | null | AT-4324 | NP |
3,256 | https://www.mspb.gov/decisions/nonprecedential/GRAVES_CASTILLO_REBECCA_SF_0714_18_0556_I_1_FINAL_ORDER_2023405.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REBECCA GRAVES -CASTILLO,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0714 -18-0556 -I-1
DATE: April 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Stephen Funderburk , 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.
Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 28, Initial
Decision. 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 t he petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the parties on
January 11, 2023. PFR File, Tab 6 at 8. The document provides, among other
things, for the dismissal of the appeal.
¶3 Before dismiss ing 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 enforceme nt purposes, the Board must determine whether the
agreement 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 settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 6 at 7. Accordingly, we find that
dismissing the appeal w ith 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 ).
3
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
been fully carried out, and should include th e 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 requir ements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. I f you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 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 requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial 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
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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, 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
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 | GRAVES_CASTILLO_REBECCA_SF_0714_18_0556_I_1_FINAL_ORDER_2023405.pdf | 2023-04-19 | null | SF-0714 | NP |
3,257 | https://www.mspb.gov/decisions/nonprecedential/GONZALEZ_ROBERTO_C_SF_0752_15_0541_I_1_FINAL_ORDER_2023482.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERTO C. GONZALEZ,
Appellant,
v.
DEPARTMENT OF EDUCAT ION,
Agency.
DOCKET NUMBER
SF-0752 -15-0541 -I-1
DATE: April 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Ruby Len , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
sustained a charge of failure to follow instructions, did not sustain charges of
conduct unbecoming a Federal law enforcement office r and lack of candor, and
mitigated the removal penalty to a 14 -day suspension. For the reasons discussed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative ju dges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
below, we GRANT the agency’s petition f or review . We AFFIRM the initial
decision insofar as it sustained the failure to follow instructions charge. We
REVERSE the initial decision insofar as it did not sustain the conduct
unbecoming a Federal law enforcement officer charge, and FIND INSTEAD t hat
the agency proved specification 3 of the conduct unbecoming charge and the
charge itself. We also VACATE the administrative judge’s penalty determination
and REINSTATE the penalty of removal.
BACKGROUND
¶2 The appellant was employed as a Criminal Inves tigator with the agency’s
Office of Inspector General (OIG) in its regional office in Long Beach,
California. Initial Appeal File (IAF), Tab 16 at 31. On January 25, 2014, there
was an altercation between the appellant, his wife, and his stepdaughter at their
home. IAF, Tab 17 at 30 -31. Shortly thereafter, the appellant’s stepdaughter and
son left the home, and his son called 911 from a nearby store to report that there
had been a fight at his home between his father and stepsister. Id. at 31. The
appellant left the home to locate his son, and, while driving, he passed a police
car. Id. at 48. The appellant did not return home that evening. Id.
¶3 On January 29, 2014, the Los Angeles County Sheriff’s Department (LASD)
obtained a felony arrest warrant for the appellant on charges of willful cruelty to
a child, spousal battery, and child abandonment. Id. at 73 -75. The appellant
voluntarily surrendered at the local police station and was released on bond
without charges being filed. IAF, Tab 18 at 61 -62. The next day, the agency
placed the appellant in a nonduty, paid status because of the ongoing LASD
inquiry. IAF, Tab 17 at 96.
¶4 In March 2014, the Los Angeles County District Attorney’s Office filed a
criminal complaint that included two misdemeanor charges, battery and cruelty to
a child by inflicting injury, to which the appellant pled not guilty. Id. at 77 -79,
81. The court issued a criminal protective order, which, among other things,
prohibited the appellant from having any personal, electronic , telephonic, or
3
written contact with his wife and stepdaughter and from coming within 100 yards
of them. Id. at 86 -87. The protective order was later modified to reduce the
stay-away distance between the appellant and his wife to 100 feet when he
dropped off their minor daughter at their home. Id. The stay -away and no
contact provisions also were modified to allow the appellant to engage in
counseling and spiritual guidance with his wife. Id.
¶5 In June 2014, the agency indefinitely suspended the appellant because it had
reasonable cause to believe he had committed a crime for which a sentence of
imprisonment could be imposed. Id. at 115 -22. On August 25, 2014, the District
Attorney’s Office announced that it was unable to proceed with the trial against
the appellant, and the court dismissed the charges and terminated the protective
order. Id. at 84.2
¶6 OIG’s Quality and Integrity Group (QIG) subsequently opened an
administrati ve investigation into the original incident. Id. at 30. In
December 2014, QIG issued a Report of Investigation (ROI). Id. at 28-71.
Relying on the results of the ROI, the agency issued a notice of proposed removal
based on the following charges: (1) c onduct unbecoming a Federal law
enforcement officer (five specifications); (2) lack of candor (three specifications);
and (3) failure to follow instructions (one specification). Id. at 5-26. The
appellant responded orally and in writing to the proposal n otice. IAF, Tab 16
at 67-69, 71 -83. The agency issued a final decision that sustained all of the
specifications except for one lack of candor specification, sustained all three
charges, and removed the appellant from Federal service. Id. at 33-51. The
appellant filed a timely appeal with the Board, and a hearing was held. IAF,
Tabs 1, 30, 33 -34; Hearing Transcripts. The administrative judge issued a
2 The Board affirmed the administrative judge’s decision to reverse the continuation of
the indefinite suspension after this date. Gonzalez v. Department of Education , MSPB
Docke t No. SF -0752 -15-0031 -I-1, Final Order (Apr. 21, 2015).
4
45-page initial decision sustaining only the failure to follow instructions charge
and mitigating the r emoval penalty to a 14 -day suspension. IAF, Tab 40, Initial
Decision (ID).
¶7 The agency has filed a petition for review, and the appellant has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In its petition, the agency
challenges the administ rative judge’s findings concerning specifications 1 -3 of
the conduct unbecoming charge and specification 2 of the lack of candor charge.3
PFR File, Tab 1 at 6-28. The agency also has certified its compliance with the
interim relief order. Id. at 30 -36.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 Generally, an agency is required to prove its charges in an adverse action
appeal by preponderant evidence. 5 U.S.C. § 7701 (c)(1)(B). A preponderance of
the evi dence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
The agency proved the charge of conduct unbecoming a Federal law enforcement
officer by preponderant evidence.
¶9 A charge of conduct unbecoming a Federal law enforcement officer is a
generic charge and has no specific eleme nts of proof; it is established by proving
that the appellant committed the acts alleged in support of the broad label.
Canada v. Department of Homeland Security , 113 M.S.P.R. 509 , ¶ 9 (2010). The
agency also must prove that the conduct was unattractive, unsuitable, or detracted
3 Neither party has challenged the administrative judge’s finding that the agency proved
the failure to follow instructions charge by preponderant evidence. PFR File, Tabs 1, 3;
ID at 30 -32. We have reviewed the record, and we discern no basis to disturb that
finding. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (199 7) (finding no
reason to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made well -reasoned conclusions);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987)
(same).
5
from the appellant’s character or reputation. Miles v. Department of the Army ,
55 M.S.P.R. 633 , 637 (1992). As explained below, we find that the agency
proved specification 3 and the charge of conduct unbecoming a Federal law
enforcement offi cer by preponderant evidence.
¶10 In conjunction with the criminal matter, the court issued a protective order
which stated, in pertinent part:
10. [The appellant] must have no personal, electronic, telephonic,
or written contact with [his wife and stepdaughte r].
11. [The appellant] must have no contact with [his wife and
stepdaughter] through a third party, except an attorney of record.
12. [The appellant] must not come within 100 yards of [his wife
and stepdaughter].
IAF, Tab 17 at 86 -87. Subsequently, the court modified the protective order as
follows: “Exception to 12: 100 ft. when [the appellant] is bringing [the couple’s
5-year-old] child home. Exception to 10, 11, 12: Counseling at Carritos
Psychological Center and Parkcrest Church, as it applies to [wife].” Id. at 86 -87,
124-36.
¶11 Specification 3 of the conduct unbecoming charge alleged that between
April 22, 2014, and August 24, 2014, there were 5,025 records of communication
(primarily voice and text messages) between the appellant and his wife in
violation of the protective order.4 Id. at 8 -10. In the initial decision, the
administrative judge noted that 1,749 of the communications originated from the
appellant’s wife’s cell phone, so those communications did not violate the
4 In addition to the 5,025 communications discussed herein, the agency alleged in the
proposal notice that the appellant , in violation of the protective order, contacted his
wife’s employer 163 times , he contacted the residence that he shared with his wife 80
times , and he contacted another residence that he and his wife rented 73 times . Id.
at 10. Because we con clude that the agency proved by preponderant evidence that the
appellant engaged in conduct unbecoming as described in specification 3 by his more
than 1,400 communications with his wife in violation of the protective order, we need
not separately analyze these additional communications.
6
protective order.5 ID at 18. The administrative judge credited the appellant’s
testimony that he was responsible for picking up and dropping off their 5 -year-old
daughter each day and that this schedule varied, necessitating additional
communication with his wife to coordinate schedules. Id. The administrative
judge also credited his testimony that, as part of his counseling and spiritual
guidance, he and his wife were required to communicate regularly with each
other. Id. The administrative judg e found that it would “seem difficult, if not
impossible, for the agency to identify with any reasonable degree of certainty
which communications violated the order.” ID at 19. She further found that,
absent evidence of the content of any communications, the agency’s attempt to
“conjure authorized versus unauthorized communications” was insufficient to
meet its burden to prove that the appellant violated the protective order. Id.
¶12 On review, the agency argues that the administrative judge’s findings
should have been based on the language of the protective order itself —which did
not permit the broad communications described by the appellant —instead of the
appellant’s belief regarding what communications were necessary. PFR File,
Tab 1 at 16 -17. The age ncy alternatively asserts that the appellant’s
interpretation of the protective order is improbable and not supported by the
record. Id. at 16 -20. We agree with the agency that the language of the
protective order is clear, and the administrative judge i mproperly interpreted the
protective order and its exceptions in evaluating specification 3 and the conduct
unbecoming charge.
5 We believe that there is a typographical or mathematical error in the initial decision.
The administrative judge identified 1,749 communications that were initiated by the
appellant’s wife, but it appears that it should be 1,729 communications. See IAF,
Tab 17 at 63 (noting that 3,296 of 5,025 communications were initiated by the
appellant). However, an adjudicatory error that is not prejudicial to an appellant’s
substantive rights provides no basis for reversal of the initial decision . Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
7
¶13 As noted above, the protective order clearly and unambiguously sets forth
the applicable stay -away and no contact provisions an d the limited exceptions
thereto. The proposal notice documented the high volume of communications
that violated the protective order. Even after excluding communications between
the appellant and his wife on Wednesdays and Sundays (the days that they we re
scheduled to have counseling and spiritual guidance) and on weekdays between
4:00 -6:00 p.m., the times that the appellant was scheduled to drop off the minor
child,6 the agency identified in the proposal notice 3,201 communications that
violated the pro tective order. IAF, Tab 17 at 10.
¶14 The agency challenges the administrative judge’s findings regarding
communications that originated from the appellant’s wife’s cell phone. PFR File,
Tab 1 at 19. For example, the administrative judge noted in the init ial decision
that there was no evidence that the appellant engaged in any harassing or
threatening behavior towards his wife during these communications. ID at 19.
She also noted that the significant number of communications initiated by the
wife reflect ed that she did not feel harassed by him or wished to avoid
communications. Id. We agree with the agency that t here is no basis in the
record to support these findings. PFR File, Tab 1 at 19.
¶15 Even if, for the purposes of our analysis, we subtracted 1,72 9
communications that originated from the appellant’s wife’s cell phone from the
remaining 3,201 communications, there were still 1,472 communications that
originated from the appellant that fell outside of the scope of the protective
order’s exceptions. Id. at 9 -10. Importantly, as noted by the administrative
6 The administrative judge ’s decision to credit the appellant’s testimony regarding his
belief about the appropriateness or necessity of communications with his wife is not
relevant to our assessment of whether the agency proved specification 3. Rather, the
plain language of the protective order, and the exceptions thereto, mandate s the
conclusion that the agency proved that the appellant violated the protective order more
than 1,400 times over a 4 -month period and engaged in conduct unbecoming.
8
judge, the appellant has not disputed the accuracy of the agency’s data, ID
at 17-18, and we discern no basis from the record to question that accuracy.
Based on the foregoing, we find that the age ncy proved by preponderant evidence
that the appellant violated the protective order more than 1,400 times as charged
in specification 3 and engaged in conduct unbecoming a Federal law enforcement
officer.7 Because proof of one specification is sufficient to sustain the charge,
see Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990), we
also sustain the conduct unbecoming charge.8
We find that the agency has proven nexus, and we reinstate the penalty of
removal.
¶16 In addition to proving the charges by preponderant evidence, the agency
must also establish the existence of a nexus between the charged misconduct and
the efficiency of the service, and it must pr ove that the penalty of removal is
reasonable. 5 U.S.C. § 7513 (a); Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537, ¶ 18 (2013); Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305 -08 (1981). In the initial decision, the administrative judge found a
nexus between the efficiency of the service and the failure to follow instructions
charge, the only charge she sustained. ID at 32 -33. Because she did not sustain
all the charges, she re -evaluated the penalty and found that the maximum
7 The agency does not challenge the administrative judge’s decision not to sustain
specifications 4 and 5 of the conduct unbecoming charge, PFR File, Tab 1 at 5; ID
at 20-24, and we discern no error with her findings in this regard. Also, because we
have sustained specification 3 and the conduct unbecoming charge , we need not address
the remaining specifications that the agency challenged on review. PFR File, Tab 1
at 6-16.
8 In light of our decision to sustain specification 3 of the conduct unbecoming a Federal
law enforcement officer charge and the charge itsel f, we need not address the agency’s
arguments on review regarding specification 2 of the lack of candor charge. PFR File,
Tab 1 at 21 -28. As explained below, the penalty of removal can be sustained based on
the conduct unbecoming and failure to follow in structions charges.
9
reasonable penalty for the sustained misconduct was a 14 -day suspension, and she
mitigated the penalty. ID at 33 -36.
¶17 Because we have, in this order, reversed the administrative judge’s findings
regarding the charg e of conduct unbecoming a Federal law enforcement officer,
we must re -evaluate nexus and the reasonableness of the agency’s chosen penalty
of removal.
Nexus
¶18 The nexus requirement, for purposes of whether an agency has shown that
its action promotes the ef ficiency 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 satisfactorily or some
other legitimate Government interest . Merritt v. Department of Justice ,
6 M.S.P.R. 585 , 596 (1981), modified on other grounds by Kruger v. Department
of Justice , 32 M.S.P.R. 71, 75 n .2 (1987). We agree with the administrative judge
that the agency established nexus with respect to the failure to follow instructions
charge. See Archerda v. Department of Defense , 121 M.S.P.R. 314 , ¶ 24 (2014)
(stating that an employee’s failure to follow instructions relates directly to the
efficiency of the service). Regarding the charge of conduct unbecoming a Federal
law en forcement officer, the sustained specification relates to the appellant’s
violation of the protective order and involves off -duty misconduct.9 IAF, Tab 17
at 8-10. The Board generally recognizes three means by which an agency may
show a nexus between an employee’s off -duty misconduct and the efficiency of
the service: (1) a rebuttable presumption of nexus may arise in certain egregious
9 The record reflects that the appellant was placed in a nonduty, paid status on
January 30, 2014, and the agency continued the appellant in this status until it
indefinitely suspended him on June 29, 2014. IAF, Tab 17 at 96, 103, 11 5-22. As
noted supra ¶ 5 n.2, the Board determined that the indefinite suspension should have
ended on August 25, 2014. Given this chronology, the standard for evaluating nexus in
the context of off -duty misconduct is appropriate here.
10
circumstances based on the nat ure and gravity of the misconduct; (2) a showing
by preponderant evidence that the misconduct adversely affects the appellant’s or
coworkers’ job performance or the agency’s trust and confidence in the
appellant’s job performance; and (3) a showing by prep onderant evidence that the
misconduct interfered with or adversely affected the agency’s mission. Kruger ,
32 M.S.P.R. at 74.
¶19 In the decision notice, the deciding official explained that, as a Federal law
enforcement officer, the appellant held a positio n of trust and the public expects
that he will be trustworthy and act with integrity at all times. IAF, Tab 16 at 42.
He stated that he lost confidence in the appellant’s ability to perform his law
enforcement duties. Id. at 46. He also stated that he did not believe that the
appellant’s superiors in OIG could confidently assign casework to him knowing
that he engaged in conduct unbecoming a Federal law enforcement officer,
including violating a protective order and failing to follow instructions. Id.
Based on the foregoing, the agency has proven that the misconduct adversely
affects the agency’s trust and confidence in the appellant’s job performance, and
it established nexus in this regard.
Penalty
¶20 The Board will review an agency -imposed penalty on ly to determine if the
agency considered all the relevant factors and exercised management discretion
within the tolerable limits of reasonableness. Douglas , 5 M.S.P.R. at 306. When,
as here, not all of the agency’s charges are sustained, the Board will consider
carefully whether the sustained charges merited the penalty imposed by the
agency. Id. at 308.
¶21 When evaluating whether a penalty is reasonable, the Board considers, first
and foremost, the nature and seriousness of the misconduct and its relati on to the
employe e’s duties, position, and responsibilities. Jackson v. Department of the
Army , 99 M.S.P.R. 604, ¶ 6 (2005). The s ustained charges, conduct unbecoming
and failure to follow instructions, are serious. Hernandez v. Department of
11
Agriculture , 83 M.S.P.R. 371, ¶¶ 2, 9 (1999); Hellein v. Department of
Agriculture , 8 M.S.P.R. 373, 375 (1981). The Board has long recognized that a
higher standa rd of conduct and degree of trust are required of an incumbent of a
position with law enforcement duties, such as the appellant. Cantu v. Department
of the Treasury , 88 M.S.P.R. 253 , ¶ 8 (2001). Further, as explained by the
deciding official, the appellant holds a position of public trust and “[a]t the very
least, the public expects that a person sworn to enforce the laws of the United
States will also follow the law.” IAF, Tab 16 at 42. Moreover, the appellant’s
violations of the protective order, as discussed above, were repeated more than
1,400 times over a 4 -month period . Additionally, as discussed in the nexus
analysis, the prop osal notice and decision letter reflect the concern that the
agency lost confidence in the appellant’s ability to perform his law enforcement
duties. IAF, Tab 16 at 45 -46, Tab 17 at 18 -19. We have considered as mitigating
factors the appellant’s 14 years of service with strong performance ratings and no
prior discipline. We also acknowledge that the appellant was in counseling
following the incidents described in the proposal notice . However, none of these
mitigating factors —or any other penalty factors that we have considered —
outweigh the nature and seriousness of the sustained offenses , and we find that
the agency’s chosen penalty of removal was reasonable.
NOTICE OF APPEAL RIG HTS10
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
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on 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
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
14
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
11 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
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.
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.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for 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 | GONZALEZ_ROBERTO_C_SF_0752_15_0541_I_1_FINAL_ORDER_2023482.pdf | 2023-04-19 | null | SF-0752 | NP |
3,258 | https://www.mspb.gov/decisions/nonprecedential/RIPPY_KENNETH_TODD_DC_0752_17_0640_I_1_FINAL_ORDER_2022631.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH TODD RIPPY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -17-0640 -I-1
DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Kathryn R. Shelton , Redstone Arsenal, Alabama, 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 his appeal of an involuntary retirement for lack of jurisdiction. On
petition for review, the appellant argues that, at minimum, he is entitled to a
jurisdictional hear ing because he was unable to make an informed, and thus a
voluntary, decision to retire as a result of agency misinformation concerning 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
criteria it would use to determine which employees would be awarded Voluntary
Separation Incentive Pay. 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 out come of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 r ights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and careful ly follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide whic h one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellan t seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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.
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 th e Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distric t court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 involv es a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RIPPY_KENNETH_TODD_DC_0752_17_0640_I_1_FINAL_ORDER_2022631.pdf | 2023-04-18 | null | DC-0752 | NP |
3,259 | https://www.mspb.gov/decisions/nonprecedential/CRUZ_LUIS_R_NY_0752_20_0029_I_1_FINAL_ORDER_2022633.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUIS R. CRUZ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER S
NY-0752 -20-0029 -I-1
NY-0752 -20-0029 -C-1
DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant.
William Edward O ’Connor , Fort Buchanan , Puerto Rico, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed petitions for review of the initial decision reversing
the appellant’s removal in Cruz v. Department of Defense , MSPB Docket
No. NY-0752 -20-0029 -I-1, and the compliance initial decision granting the
appellant reinstatement with back pay in Cruz v. Department of Defense , MSPB
Docket No. NY -0752 -20-0029 -C-1. Because these petitions for review concern
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
the same underlying facts and their legal resolutions are interdependent such that
joinder will expedite their processing without ad versely affecting the parties’
rights , we JOIN them for adjudication pursuant to 5 C.F.R. § 1201.36 (a)(2) , (b) .
For the reasons discussed below, we GRANT the agency’s petition s for review,
VACATE the initial decision and the compliance initial decision , and DISMISS
the now joined appeal s for lack of jurisdiction.
BACKGROUND
¶2 The Adjutant General of the Puerto Rico Army National Guard (PRARNG)
employed the appellant as a GS -07 Tra nsportation Assistant. Cruz v. Department
of Defense , MSPB Docket No. NY-0752 -20-0029 -I-1, Initial Appeal File (IAF) ,
Tab 7 at 20. It is undisputed that in this position, the appellant was required to
meet the following conditions of employment: (1) be a dual status military
technician as defined in 10 U.S.C. § 10216 (a); (2) be a member of the National
Guard; (3) hold the military grade specified by the Secretary concern ed for that
position; an d (4) wear the appropriate military uniform while performing duties
as a dual status military technician. IAF, Tab 7 at 6, Tab 8 at 4; 32 U.S.C.
§ 709(b); Dyer v. Department of the Air Force , 971 F.3d 1377 , 1383 (Fed. Cir.
2020).
¶3 In a June 2019 memorandum , the PRARNG informed the appellant that a
Qualitative Retention Board (QRB) did no t select him for retention in the Army
National Guard. IAF, Tab 7 at 18. Accordingly, the appellant was honorably
discharged from the PRARNG in October 2019 . IAF, Tab 7 at 18, Tab 16 at 10.
That same month, the PRANG i nformed him that he would be disch arged from his
technician employment as a Transportation Assistan t based on his loss of his
military membership, effective November 2019 . IAF, Tab 7 at 19. He was
separated from his Transportation Assistant position on November 22, 2019. Id.
at 20 -21.
3
¶4 The appellant filed this appeal of his separation, arguing that he was denied
due process and “there [was] no evidence to support the agency’s action and the
action [was] otherwise unwarranted.” IAF, Tab 1 at 6. The agency filed a motion
to dismiss, argui ng, as relevant here, that the Board is without jurisdiction to hear
his appeal because his separation was based entirely upon his loss of his military
membership, which was in turn based on fitness for duty in a reserve component.
IAF, Tab 7 at 9-12. In such a case, the agency argued, the appellant’s separation
was appealable only to the PRARNG Adjutant General. Id. at 10, 12 -13.
¶5 The appellant withdrew his request for a hearing , and the administrative
judge issued an initial decision based on the writte n record. IAF, Tab 14 at 4,
Tab 17, Initial Decision (ID). She found that, pursuant to the National Defense
Authorization Act for Fiscal Year 2017 (NDAA for 2017), the appellant was a
chapter 75 employee, and thus the Board had jurisdiction over his sepa ration. ID
at 2-4. She determined that he was separated based on a charge of failure to meet
a condition of employment —in this case, the maintenance of his military status.
ID at 4. The administrative judge found that she was precluded from reviewing
the merits of the agency’s determination regarding the appellant’s loss of military
membership but not whether the appellant, as a covered employee, was denied
constitutional due process. Id. She determined that the agency denied the
appellant his due process rights when it failed to provide an opportunity to
respond to its separation notice. ID at 4 -5. As a result, the administrative judge
reversed the removal action and ordered the agency to cancel the removal and
retroactively restore the appellant, effective Nov ember 22, 2019. ID at 5 -6. The
administrative judge ordered the agency to provide interim relief to the appellant
in accordance with 5 U.S.C. § 7701 (b)(2)(A) if a petition for r eview was filed by
either party . ID at 7.
¶6 Subsequently, the appellant filed a petition for enforcement of the interim
relief order. Cruz v. Department of Defense , MSPB Docket No. NY -0752 -20-
0029 -C-1, Compliance File (CF) , Tab 1. The agency responded , rearguing that
4
the B oard lacks jurisdiction over the appellant’s removal and that the agency is
prohibited by statute from reinstating the appellant and placing him i n a pay
status, pending the outcome of the petition for review. CF, Tab 7 at 4 -6. The
administrative judge i ssued a compliance initial decision granting enforcement of
the interim relief order. CF, Tab 8, Compliance Initial Decision (CID) at 1, 3.
She reasoned that there was no authority to support reversal of the interim relief
order. CID at 2.
¶7 The agency h as filed a petition for review and a compliance petition for
review . Petition for Review ( PFR) File, Tab 1 ; Compliance Petition for Review
(CPFR) File, Tab 1 . The appellant has responded to the agency’s petition for
review and moved to dismiss the petiti on, alleging that the agency failed to
provide interim relief or certify that it was in the process of doing so . PFR File,
Tabs 3 -4. The agency did not file a reply to the appellant’s response to the
petition for review, and the appellant has not responded to the compliance
petition for review .
DISCUSSION OF ARGUME NTS ON REVIEW
The Board lacks jurisdiction over this appeal pursuant to 32 U.S.C. § 709 because
it concerns the app ellant’s fitness for duty in a reserve component .
¶8 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 his appeal by a preponderance of the evidence.
5 C.F.R. § 1201.56 (b)(2)(i)(A).
¶9 The agency argues that the administrative judge erred in finding that dual
status military technicians, such as the appellant, are considered tenured Federal
employees with adverse action appeal rights reg ardless of the basis upon which
the adverse action at issue was taken. PFR File, Tab 1 at 22. After the
administrative judge issued her initial decision, but before she issued her
compliance initial decision, the U.S. Court of Appeals for the Federal Cir cuit
5
issued its decision in Dyer , 971 F .3d 1377 . In light of that decision , we agree
with the agency that the Board lacks jurisdiction over this appeal.
¶10 The administrative judge correctly found that the NDAA for 2017 provided
dual status technicians with the right to appeal some adverse actions, such as
removals, to the Board. 32 U.S.C. § 709 (f)(5); Dyer , 971 F.3d at 1382; see also
5 U.S.C. § 7512 (1)-(5) (identifying the adverse actions that a Federal employee
may appeal to the Board under chapter 75). Howev er, this right is limited. Dyer ,
971 F.3d at 1382. Specifically, section 709(f)(4) provides that actions that
“concern[]” a dual status technician’s “fitness for duty in the reserve
components” are appealable only to the adjutant general of the jurisdict ion
concerned.2 32 U.S.C. § 709(f)(4), (g)(1).
¶11 In Dyer , 971 F.3d 1377 , the court held that under 32 U.S.C. § 709 ,
“termination of dual -status employment . . . as the result of separation from the
National Guard” necessarily concerns fitness for duty in the reserve com ponents.
Dyer , 971 F.3d at 1382 -84 (citing 32 U.S.C. § 709 (b), (f)(1)(A), (f)(4), (f)(6)).
As a result, it concluded that the Board does not have jurisdiction over such a
termination. Id. at 138 4. Here, the appellant was terminated from his dual status
technician position because of the loss of his membership in the PRARNG . IAF,
Tab 7 at 19 . Thus, under the court’s reasoning in Dyer , as well as the applicable
statute, we find that the Board la cks jurisdiction over his termination.
2 The NDAA for 2017 limits dual status National Guard Technician appeals of most
agency actions to the adjutant general of the relevant jurisdiction when the appeal
concerns activity occurring while t he 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). Office of Personnel Management regulations
implementing the NDAA for 2017, 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).
6
¶12 The appellant’s attorney argues the Board has jurisdiction because the
Board may review his appeal as a failure to maintain a condition of employment,
relying on the U.S. Supreme Court’s decision in Department of the Navy v. Egan ,
484 U.S. 518 (1988). PFR File , Tab 3 at 5 . In Egan , the Court held that the
Board has limited authority to review an adverse action under 5 U.S.C. chapter 75
for reasons pertaining to a negative security clearance determination. Egan , 484
U.S. at 5 30-31. The court in Dyer found that Egan was inapposite to the removal
of a dual status technician based on loss of National Guard membership. Dyer ,
971 F.3d at 1383 -84. The court reasoned that Egan did not concern 32 U.S.C.
§ 709 “at all” and Mr. Dye r’s termination was not “for cause ,” as in Egan , but
was “compelled by statute due [to] his failure to meet a requirement of
employment provided for by statute.” Dyer , 971 F.3d at 1383 -84.
The administrative judge erred in granting the petition for enfo rcement.
¶13 The administrative judge erred in granting the appellant’s petition for
enforcement of the interim relief order . O ur regulations do not allow for a
petition for enforcement of an interim relief order. Ayers v. Department of the
Army , 123 M.S.P.R. 11 , ¶ 7 (2015) ; 5 C.F.R. § 1201.182 (a)-(b). Instead, the
Board treats motions to enforce an interim relief order as a motion to dismiss the
petition for review . Batten v. U .S. Postal Service , 101 M.S.P.R. 222 , ¶ 6, aff’d
per curiam , 208 F. App’x. 868 (Fed. Cir. 2006); 5 C.F.R. § 1201.116 (d).
Nevertheless, in light of our dismissal for lack of jurisd iction , 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. PFR
File, Tab 3 at 6-7, Tab 4 at 4 -5; see Lovoy v. Department of Health and Human
Services , 94 M.S.P.R. 571 , ¶ 28 (2003) (declining to dismiss an agency’s petition
for review for failure to provide interi m relief when the issue of the Board’s
jurisdiction over the appeals was not yet resolved) ; 5 C.F.R. § 1201.116 (e)
(reflecting that dismissal for failure to comply with an interim relief order is
7
discretionary) . The appellant’s motion to dismiss the agency’ s petition for
review, therefore, is denied.
¶14 Therefore, we vacate the initial decision and the compliance initial decision
and dismiss these joined appeal s for lack of jurisdiction .3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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
immediat ely review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 On review, the agency also argues that the administrative judge erred in finding the
appellant had a property interest in his employment, PFR File, Tab 1 at 11-14, and
asserts that the appellant failed to state a claim upon whic h relief can be granted, id.
at 14, that the Board lacks jurisdiction over his separation because it was required by
statute, id. at 26 -27, and that the Government is immune from review of military
personnel decisions, id. at 27 -28. In light of our findin gs here, we find it unnecessary
to address those arguments.
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.
8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc .uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an ap peal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neith er endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed th at you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action 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 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:
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
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
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.
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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CRUZ_LUIS_R_NY_0752_20_0029_I_1_FINAL_ORDER_2022633.pdf | 2023-04-18 | null | S | NP |
3,260 | https://www.mspb.gov/decisions/nonprecedential/WICKS_ANJANETTE_ANN_AT_0752_17_0749_I_1_FINAL_ORDER_2022667.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANJANETTE ANN WICKS,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.
DOCKET NUMBER
AT-0752 -17-0749 -I-1
DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark Tietig , Merritt Island, Florida, for the appellant.
Louis T. Shernisky , Esquire, Kennedy Space Center, Florida, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
dismissed her removal appeal as untimely filed, without good cause . On petition
for review, the appellant suggests that she has medical limitations , which may
have contributed to her untimeliness. She also argues, for the first time, that her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
untimeliness is attributable to her being out of town and not checking emails
when the agency electronically served her removal notice. 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).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.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:
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 requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition 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
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 | WICKS_ANJANETTE_ANN_AT_0752_17_0749_I_1_FINAL_ORDER_2022667.pdf | 2023-04-18 | null | AT-0752 | NP |
3,261 | https://www.mspb.gov/decisions/nonprecedential/ALFORD_LORETTA_JEAN_DC_1221_17_0554_W_1_FINAL_ORDER_2022690.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LORETTA JEAN ALFORD,
Appellant,
v.
COMMITTEE FOR PURCHA SE
FROM PEOPLE WHO ARE BLIND
AND SEVERE LY DISABLED ,
Agency.
DOCKET NUMBER
DC-1221 -17-0554 -W-1
DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Loretta Jean Alford , Dale City , Virginia, pro se.
Floyd Allen Phaup, II , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of Board
jurisdiction. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
circumsta nces: 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 rul ings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). A fter fully
considering the filings in this appeal, we conclude that 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 administrative judge erred in finding that the
retaliation claims that the appellant raised in her previous IRA appeal are barred
under the doctrine of res judicata, we AFFIRM the initial decision .
BACKGROUND
¶2 This is the appel lant’s third Board appeal . She previously filed an IRA
appeal on July 15, 2013, alleging that the agency had reassigned her, issued her a
letter of counseling, and subjected her to a hostile work environment and/or a
significant change in her duties and w orking conditions in reprisal for filing a
grievance regarding her request to telework . Alford v. Committee for Purchase
From People Who Are Blind and Severely Handicapped , MSPB Docket No.
DC-1221 -13-6302 -W-1, Initial Appeal File, Tab 1 at 10 . On February 21, 2014,
an administrative judge issued an initial decision that dismissed the appeal,
finding that the appellant failed to make a nonfrivolous allegation of Board
jurisdiction because her grievance did not involve remedying a violation of
5 U.S.C. § 2302 (b)(8). Alford v. Committee for Purchase From People Who Are
Blind and Severely Handicapped , MSPB Docket No. DC -1221 -13-6302 -W-1,
3
Initial Decision at 1, 3 -4 (Feb. 21, 2014) . The initi al decision became the
Board’s final decision when neither party filed a petition for review .
¶3 On July 16, 2014, the appellant filed a nother Board appeal challenging her
July 7, 2014 removal for misconduct and raising various affirmative defenses,
including reprisal for whistleblowing disclosures and equal employment
opportunity (EEO) activity. Alford v. Committee for Purchase From People Who
Are Blind and Severely Handicapped , MSPB Docket No. DC -0752 -14-0892-I-1,
Initial Appeal File (Removal IAF), Tab 1. More specifically, the appellant
alleged that the agency retaliated against her for the following activity: filing a
complaint with the Inspector General (IG) for the General Services
Administration (GSA ) alleg ing that the agency’s Chief of Staff had falsified
timecards;2 reporting violence in the workplace to the GSA IG in May 2014;
filing a complaint with the Office of Special Counsel (OSC) in June 2014 ; and
filing an EEO complaint on July 1, 2014, alleging discrimination by the Chief of
Staff. Removal IAF, Tab 19 at 10 (prehearing conference summary ).
¶4 On November 13, 2014, the administrative judge issued an initial decision
affirming the removal and den ying the appellant’s affirmative defenses. Alford v.
Committee for Purchase From People Who Are Blind and Severely Handicapped ,
MSPB Docket No. DC -0752 -14-0892 -I-1, Initial Decision (Nov . 13, 2014). The
appellant filed a petition for review of the initia l decision on March 16, 2016 .
Alford v. Committee for Purchase From People Who Are Blind and Severely
Handicapped , MSPB Docket No. DC -0752 -14-0892 -I-1, Petition for Review File,
Tab 4. The Board dismissed the petition for review as untimely filed without
good cause shown in a final order dated August 19, 2016. Alford v. Committee
2 As noted by the administrative judge in the initial decision affirming the appellant’s
removal, the appellant did not identify the date of her IG complaint. Alford v.
Committee for Purchase From People Who Are Blin d and Severely Handicapped , MSPB
Docket No. DC -0752 -14-0892 -I-1, Initial Decision at 14 (Nov. 13, 2014) .
4
for Purchase From People Who Are Blind and Severely Handicapped , MSPB
Docket No. DC -0752 -14-0892 -I-1, Final Order (Aug. 19, 2016).
¶5 The appellant filed this IRA appeal on May 31, 2017 . Alford v. Committee
for Purchase From People Who Are Blind and Severely Disabled , MSPB Docket
No. DC-1221 -17-0554 -W-1, Initial Appeal File (IAF), Tab 1 . On the Board
appeal form, the appellant identified the agency action that she was challenging
as “PROHIBITED PERSONNEL PRACTICES” (capitalization as in original) and
stated that the action occurred on July 7, 2014 (i.e., the date of her removal). Id.
at 3. She also submitted copies of the proposal notice and decision letter
regarding her removal, the Standard Form (SF) 50 documenting her removal , and
letters from OSC dated May 25, 2017, stating that it had made a final
determination to close its file on h er complaint and advising h er of her right to
seek corrective action from the Board . Id. at 7-27.
¶6 In its closure letter , OSC noted that the appellant made the following
allegations in her complaint : the agency processed several personnel actions in
violation of its Memorandum of Understanding (MOU) with GSA, which
provided that GSA would take over these responsibilities; several position
descriptions were not certified by GSA Human Resources (HR) Specialists as
required under the MOU, including her initial position and the position to which
she was reassigned ; and the agency denied t he appellant the right to appeal a desk
audit by failing to provide her with a written decision regarding the audit . Id.
at 18. OSC explained that it examined these allegations as possible violations of
5 U.S.C. § 2302 (b)(12) , but determined that there was no basis for further
inquiry. Id. at 19 -20.
¶7 The administrative judge issued an order informing the parties of the
jurisdictional issues and directing the appellant to submit evidence and argument
to establish the Board’s jurisdiction over her appeal. IAF, Tab 3. The appellant
5
filed a lengthy response , which consists largely of complaints about the agency
and documents that have no bearing on the jurisdictional issue.3 IAF, Tab 4. For
example, the appellant assert ed that s he was hired and terminated on a “fictitious”
position that was not classified by GSA HR, as required by the MOU. Id. at 3.
¶8 About 6 weeks later, t he appellant submitted another Board appeal form and
asserted that she was amending her appeal to include GSA as a party to the case .
IAF, Tab 6. The appellant reiterated her claim that she “was hired on a
non-certified position description ” and alleged that the “GSA attorney failed to
inform the courts of the conflict of interest in representing the [agency].” Id.
at 5. With her amended appeal, the appellant again submitted copies of the notice
of proposed removal , the decision letter sustaining the removal , and the SF -50
documenting her removal . Id. at 7-15.
¶9 The agency moved to dismiss the appeal for lack of jurisdiction . IAF,
Tab 11. The agency argued that the appellant failed to make a nonfrivolous
allegation of Board jurisdiction and that the appeal is barred under the doctrine of
res judicata based on the Board’s previous decision affirming the appellant’s
removal and rejecting her whistleblower reprisal claims . Id. at 5-6.
¶10 The administrative judge issued an initial decision dismissing the appeal for
lack of Board jurisdiction without holding a hearing, finding that the appellant
failed to make a nonfrivolous allegation of the Board’s jurisdiction. IAF, Tab 1 8,
Initial Decis ion (ID) at 1, 7-8. The administrative judge further found that the
appellant’s attempt to relitigate her 2014 removal is barred by the doctrine of res
judicata . ID at 8. In addition, the administrative judge found that, to the extent
3 As noted by the administrative judge in the initial decision, t hese documents include
various SF -50s, position descriptions, vacancy announcements , the MOU referenced
above, the appellant’s résumé , certificates of awards she received , and several
memoranda addressing a position review that she requested in July 2012 . IAF, Tab 18,
Initial Decision (ID) at 4.
6
that the appellant was attempting to challenge the same personnel actions that she
raised in her first IRA appeal, such an attemp t is also barred by res judicata. Id.
¶11 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 1. The agency has not responded to the petition.
ANALYSIS
¶12 To establish the Board’s jurisdiction over an IRA appeal, an appellant must
have exhausted her administrative remedies before the OSC and make
nonfrivolous allegations of the following: (1) she made a protected disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity as
specified in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
or protected activity was a contributing factor in the agency’s decision to take or
fail to take a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A). 5 U.S.C.
§§ 1214 (a)(3), 1221; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). The substantive requirements of exhaustion are met when an appellant
has provided OSC with sufficient basis to pursue an investigation that might lead
to corrective action. Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶ 10.
¶13 A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Mudd v.
Department of Veterans Affairs , 120 M.S. P.R. 365, ¶ 8 (2013) . The disclosure
must be specific and detailed, not a vague allegation of wrongdoing regarding
broad or imprecise matters. Rzucidlo v. Department of the Army , 101 M.S.P.R.
616, ¶ 13 (2006). In other words, conclusory, vague, or unsupported allegations
are insufficient to support a nonfrivolous allegation of jurisdiction in an IRA
appeal. Ontivero v. Departme nt of Homeland Security , 117 M.S.P.R. 600, ¶ 15
(2012) .
7
¶14 Applying this standard, the administrative judge found that the appellant did
not articulate with specificity any allegations of whistleblowing followed by
retaliatory personnel actions that she may have made to OSC. ID at 6. T he
administrative judge further found that the disjointed narrative of grievances that
the appellant provided in her appeal and her jurisdictional response did not
describe with specificity any protected whistleblowing disclosures or link any
such disclosures to specific personnel actions threatened or taken against her. ID
at 6-7. Therefore, t he admini strative judge found, the appellant failed to
nonfrivolously allege a basis for the Board’s jurisdiction over this matter as an
IRA appeal . Id.
¶15 We agree. In her comprehensive jurisdictional order, the administrative
judge explicitly directed the appellan t to file a statement, accompanied by
evidence, listing, inter alia , her protected disclosures or activities, and the actions
the agency took or failed to take, or threatened to take or fail to take, against her
because of those disclosures or activit ies. IAF, Tab 3 at 7. In her response, t he
appellant listed two emails as her protected disclosures : (1) a May 16, 2013
email to the GSA IG, GSA HR, and OSC ; and (2) a June 4, 2013 email to the
GSA IG. Id. at 4, 22 -24, 67. In these emails, the appell ant alleged that the
agency hired her illegally because the position description for her initial position
was not certified by an HR specialist.4 Id. at 23, 67. Despite the administrative
judge’s explicit instructions, the appellant did not identify any alleged retaliatory
actions by the agency in her response .
4 Although the appellant’s May 16, 2013 ema il also included allegations of theft and
falsification of timecards by agency employees, the appellant’s statements in her
jurisdictional response as to why she believed that her disclosures were true and were
contributing factors to the action, as well a s the contents of her June 4, 2013 email,
indicate that, at least for purposes of this appeal, the appellant deemed her protected
disclosures to be her allegations in these emails pertaining to the agency’s alleged
illegal hiring process. IAF, Tab 4 at 4, 67. We cannot be certain, however, because the
appellant did not describe her alleged protected disclosures with greater specific ity.
8
¶16 Based on our review of the record, we discern no reason to disturb the
administrative judge’s finding that the appellant failed to make a nonfrivolous
allegation of jurisdiction. The gist of this appeal appears to be the appellant’s
contention that the agency ’s hiring process is illegal and violates the MOU
between the agency and GSA. IAF, Tab 1 at 5; Tab 4 at 3 -4; Tab 6 at 5 ; Tab 7
at 5. These claims provide no basis for the Board’s jurisdiction over this matter
as an IRA appeal.
The administrative judge correctly found that the appellant’s attempt to appeal
her removal is barred by res judicata.
¶17 As previously noted, the administrative judge also found that the appellant’s
attempt to appeal her 2014 removal5 is barred by the doctrine of res judicata . ID
at 8. Under th at doctrine, a valid, final judgment on the merits of an action bars a
second action involving the same parties or their privies based on the same cause
of action. Inman v. Depart ment of Veterans Affairs , 115 M.S.P.R. 41 , ¶ 13 (2010)
(citing Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995)). Res
judicata precludes parties from relitigating issues that were, or could have been,
raised in the prior action and is applicable if : (1) the prior judgment was
rendered by a forum with competent jurisdiction; (2) the prior judgment was a
final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Id. As a result of the Board’s
final decision in the appellant’s removal appeal, these requirements have been
met in this case. Thus, the administrative judge correctly found that the
appellant’s attempt to appeal her removal is barred by res judicata. ID at 8.
5 The administrative judge concluded that the appellant appeared to be challenging her
removal based on her submission of the notice of proposed removal and decision letter
with her appeal and her amended appeal in this case . ID at 7; IAF, Tabs 1, 6.
9
The administrative judge erred in finding that the appellant’s attempt to appeal
the same actions that she challenged in her prior IRA appeal is barred by res
judicata.
¶18 As noted above , in her prior IRA appeal, the appellant alleged that the
agency rea ssigned her, issued her a letter of counseling, and subjected her to a
hostile work environment and/or a significant change in her duties and working
conditions in retaliation for her protected activity. Although the appellant did not
identify any alleged retaliatory personnel actions in her jurisdictional response in
this appeal , OSC’s May 25, 2017 letter informing the appellant of her right to
seek corrective action from the Board states that she alleged that the agency took
the following actions in reta liation for her protected activity: it issued her a letter
of counseling, a letter of reprimand, and a letter of clarification; it reassigned her
and subsequently removed her ; it did not select her for three positions; and it
failed to properly process he r administrative grievance . IAF, Tab 1 at 26. The
administrative judge found that, to the extent the appellant is attempting to appeal
the same actions in this appeal that she challenged in her prior IRA appeal, such
an attempt is also barred by res judicata. ID at 8.
¶19 The administrative judge erred in making this finding. The Board has held
that res judicata is not applicable to a prior decision that dismissed an appeal for
lack of jurisdiction. Armas v. Department of Justice , 71 M.S.P.R. 244 , 248
(1996). As previously discussed , the appellant’s prior IRA appeal was dismissed
for lack of jurisdiction . This error does not provide a basis for review , however ,
because the administrative judge correctly found that the appellant failed to make
a nonfrivolous allegation of Board jurisdiction in this IRA appeal . 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 fo r reversal of an initial decision ).
10
The appellant’s argument on review provide s no basis for disturbing the initial
decision.
¶20 The appellant’s sole argument on review is that the administrative judge
improperly failed to address the following three matters: (1) the agency’s failure
to provide her a hard copy of its response to this appeal; (2) the contents of her
whistleblower disclosures ; and (3) GSA’s failure to provide her with an
investigative report regarding her whistleblower complaints. PFR File, Ta b 1.
¶21 This argument is unavailing. Although the initial decision does not include
a discussion of the contents of the May 16 and June 4, 2013 emails that the
appellant identified as protected disclosures in her jurisdictional response, it is
well settled that the 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) . The other two matters
cited by the appellant on review have no relevance to the jurisdictional issue , and
the administrative judge’s failure to address them provides no basis for disturbing
the initial decision.6
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most app ropriate in any matter.
11
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 w ish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your c ase by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to 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 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
12
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or 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,
13
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addre ss of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be add ressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federa l
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are i nterested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided 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 compet ent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Contact information for the courts of appeals can be found at their
respec tive 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 | ALFORD_LORETTA_JEAN_DC_1221_17_0554_W_1_FINAL_ORDER_2022690.pdf | 2023-04-18 | null | DC-1221 | NP |
3,262 | https://www.mspb.gov/decisions/nonprecedential/BROKMEIER_MICHAEL_J_DE_0752_14_0325_I_1_FINAL_ORDER_2022789.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL J. BROKMEIER ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -14-0325 -I-1
DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.
Eric L. Carter , Esquire, Fort Riley, 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
affirmed his reassignment and reduction in grade. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of mate rial fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial deci sion were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the correct analytical framework to the appellant’s
affirmati ve defense of reprisal for engaging in activity protected under the
Rehabilitation Act , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS -1811 -12 Supervisory Criminal Investigator who
supervised a mixed group of both civilian and military personnel at the agency’s
Directorate of Emergency S ervices , Police Provost Marshal Division, Military
Police Investigations Branch, at Fort Riley, Kansas . On September 9, 2013, the
appellant’s supervisor, the Chief of Police, directed him to instruct his
subordinates to stop spreading rumors, because there were a number of rumors
circulating around the workplace, including a sexual harassment rumor involving
employees within the division . The appellant then held a meeting with three of
his military staff and stated: “If you are spreading rumors that can harm anyone’s
career, you are done. [. . .] This is still my offic e, no more running to the
Battalion or the Detachment . If you have an issue, come see me.” Initial Appeal
File (IAF), Tab 6 at 8, 53, 73, 87, 115, 122, 129. Based on that incident, the
agency issued a notice of proposed removal proposing his removal on charges of
“reprisal” and conduct unbecoming a Federal employee. Id. at 52-56. The
3
deciding official mitigate d the proposed removal to a reassignment and reduction
in grade effective April 6, 2014. Id. at 27 -32.
¶3 On appeal, after conducting a 3 -day hearing, the administrative judge issued
an initial decision that sustained both charges based on his assessment of the
witnesses’ credibilit y, including the appellant’s demeanor. IAF, Tab 41, Initial
Decision (ID) at 6 -14. He found that the appellant failed to prove his affirmative
defenses of disability discrimination, retaliation for protected equal employment
opportunity (EEO) activity, a nd harmful error. ID at 15 -21. He also found that
the penalty was within the tolerable bounds of reasonableness. ID at 21 -25.
¶4 The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 5. The agency responds in opp osition to the petition for
review. PFR File, Tab 7.
ANALYSIS
¶5 The material facts of this appeal are set forth in the initial decision and are
not in dispute. The appellant admits that he made the following statement during
the meeting in question:
If you are spreading rumors that can harm anyone’s career, you are
done. [ . . .] This is still my office, n o more running to the Battalion
or the Detachment . If you have an issue, come see me.
IAF, Tab 6 at 8, 53, 73, 87, 115, 122, 129. He does not all ege that the agency
misunderstood what he meant or that the agency took his statement out of
context. Instead, he alleges on review that he made this remark at the direction of
his boss, the Chief of Police. PFR File, Tab 5 at 8-11. It is not disputed t hat the
Chief instructed the appellant to meet with his subordinates and tell them to stop
spreading rumors. IAF, Tabs 36 -38, Hearing Compact Diskette (HCD)
(testimony of the Chief). However, the administrative judge found, and we agree,
that the Chief’s instruction could not reasonably be construed as an order for the
appellant to threaten his subordinates with removal or to prohibit them from using
their military chain of command to raise possibly legitimate concerns . ID at 10.
4
¶6 As noted above, the age ncy b rought two charges based on the incident in
question . Under the first charge, the agency contended that the appellant
committed “reprisal” in violation of Army Regulation (AR) 600 -20, ¶ 5-12(c) ,
Army Command Policy (2008), a section of the agency’s p olicy regarding the
Military Whistleblower Protection Act. IAF, Tab 6 at 52, 136 -38. Therefore, the
agency had to prove that the appellant’s actions violated the regulation. IAF,
Tab 6 at 52, 137; see Marler v. Department of Veterans Affairs , 58 M.S.P.R. 116 ,
119-20 (1993) .
¶7 The general statement t hat precedes the enumerated sub paragraph of
AR 600-20 states that agency employees may not take acts of reprisal against
soldiers for filing discrimination complaints or sexual harassment charges. IAF,
Tab 6 at 137. In the specific subparagraph cited in the notice of proposed
removal, the regulation states:
No employee or Soldier may take or t hreaten to take an unfavorable
personnel action, or to withhold or threaten to withhold a favorable
personnel action, in reprisal against any Soldier for making or
preparing a protected communication.
Id.
¶8 The agency did not provide the portion of the regulation defining the term
“protected communication.” The version of AR 600 -20 released in 2014 defines
a “protected communication” as a communication within the chain of command or
to other specific individuals (e.g., a Member of Congress, an Inspector General,
an investigator, an auditor, etc.) , which the member of the Armed Forces
“reasonably believe s evidences a violation of law or regulation, including a law
or regulation prohibiting sexual harassment or unlawful discrimination, gross
mismanagement, a gross waste of funds or other resources, an abuse of authority,
or a substantial and specific danger to public health or safety.” AR 600 -20,
¶ 5-12(b) (Nov. 6, 2014) ; see AR 600 -20, ¶ 5-12(c), (d) ; see also AR 600 -20,
¶ 5-12(b) (July 24, 2020) (providi ng a more expansive definition of the term
“protected communication ” in the current version of the Army Regulation ).
5
Accordingly, threatening reprisal is misconduct pursuant to the agency’s
regulations. Moreover, the appellant’s blanket prohibition again st “running to the
Battalion or the Detachment,” would prohibit his subordinate employees from
making a protected communication to the Battalion or the Detachment. We find,
therefore, that the administrative judge properly construed the first charge. In
addition, because the appellant admitted making the statement in question, and
because the statement on its face threatened negative consequences should one of
the appellant’s subordinates take issues to the Detachment or the Battalion, we
agree with the a dministrative judge that the agency proved its first charge. ID
at 6-12.
¶9 The second charge is a conduct unbecoming charge based on the same
incident and operative facts as the first charge. To prove a charge of conduct
unbecoming, the agency is required to demonstrate that the appellant engaged in
the underlying conduct alleged in support of the broad label. Raco v. Social
Security Administration , 117 M.S.P.R. 1 , ¶ 7 (2011); Canada v. Department of
Homeland Security , 113 M.S.P.R. 509 , ¶ 9 (2010). The agency labeled this an
“alternative” charge in its removal notice . The administrative judge correctly
concluded that, because the two charges contain slightly diff erent elements of
proof, they should be treated as separate charges. Campbell v. Department of the
Air Force , 72 M.S.P.R. 480 , 484 (1996) ; Walker v. Department of the Navy ,
59 M.S.P.R. 309 , 318 (1993) (finding that a single set of actions can support more
than one ch arge as long as the charges entail different elements of proof). The
administrative judge further found that the agency proved the second charge by
preponderant evidence because it demonstrated that the appellant engaged in the
underlying conduct set forth in the proposal letter , and we see no reason to
disturb his determination.
6
¶10 As to the agency’s penalty determination, the administrative judge correctly
found that the a gency properly considered the Douglas2 factors most relevant to
the case and reasonably exercised its management discretion. Gray v.
Government Printing Office , 111 M.S.P.R. 184 , ¶ 18 (2009) (stating that the
Board’ s function concerning its review of an agency’ s penalty selection is not to
displace management’ s responsibility, but to determine whether management
exercised its judgment within the tolerable limits of reasonableness ). Although
the agency brought two charges, it indicated that the second charge was an
alternative charge; as such, there is no evidence in the record that the deciding
official based his penalty determination on two charges , rather than one. To the
extent that he did, the reprisal charge alone is sufficient to sustain the penalty.
See Gaines v. Department of the Air Force , 94 M.S.P.R. 527 , ¶ 6 (2003) ; Luciano
v. Department of the Treasury , 88 M.S.P.R. 335 , ¶ 10 (2001) , aff’d , 30 F. App’x
973 (Fed. Cir. 2002).
¶11 The appellant spends a significant portion of his petition for review
discussing the nature of the rumors he was directed to “ squelch” and implying
that the administrative judge’s discussion of the context of the meeting unfairly
makes his misconduct seem much worse than it actually was. PFR File, Tab 5
at 16-23. The record reflects that t here were a number of rumors circulatin g in
the office at the time, including a rumor about a possible reduction in force and
another one about alleged sexual harassment. However, in their testimony, the
Chief and the appellant made it abundantly clear that the point of the meeting was
to disc ourage the spreading of all rumors regardless of subject matter, not only
regarding sexual harassment. HCD (testimony of the Chief and the appellant).
Therefore, to the extent that the administrative judge devoted attention to
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) , the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
7
background information abou t the nature of the rumors, his decision to do so
provides no reason to disturb the initial decision.
¶12 The appellant argues on review that the length of time between the hearing
and the issuance of the initial decision means that the administrative judge
probably forgot the testimony, and this led him to make erroneous fact findings.
PFR File, Tab 5 at 6 -7. The appellant does not identify any material testimony
that the administrative judge inaccurately recalled and , as stated above, the
appellant admitted to the core facts underlying the charge. The length of time
between the hearing and the issuance of the initial decision provide s no basis for
disturbing an initial decision , absent a showing that the appellant’s rights were
actually prejudiced by the delay. There has been no such showing here .
¶13 Finally, the appellant does not challenge on review the administrative
judge’s finding that he failed to prove his affirmative defens es. Nevertheless, we
modify the administrative judge’s analysis of the appellant’s retaliation claim to
the extent that the underlying activity concerned Rehabilitation Act -protected
activity . The administrative judge analyzed the appellant’s EEO retalia tion
affirmative defense under the a nalytical framework set forth in Savage v.
Department of the Army , 122 M.S.P.R. 612 , ¶¶ 48 -50 (2015 ), clarified on other
grounds by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 ,
¶¶ 30-31 (2016 ). ID at 18-19. Subsequent to the initial decision, the Board
issued Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 44-47,
which clarified that a more stringent st andard applies in the context of retaliation
claims arising under the Rehabilitation Act , such that the appellant must prove
that his Americans with Disabilities Act -protected activity was a “but -for” cause
of the re taliation. The appellant’s raising disability discrimination in his EEO
complaint is pro tected by the Rehabilitation Act . ID at 18; Pridgen , 2022 MSPB
31, ¶ 44. However, given the administrative judge ’s undisputed finding that the
appellant did not show that his protected activity was a motivating factor in his
removal, ID at 18 -19, we find that the appellant failed to meet the more stringent
8
“but-for” standard that applies to a Rehabilitation Act retaliation claim .3 As to
the appellant’s remaining affirmative defenses, we see no error in the
administrative judge’s analysis . See Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 105 -06 (1997) (finding no reason to d isturb the administrative judge’ s
findings when she considered the evidence as a who le, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 3 57, 359 (1987) (same).
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most 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.
3 In analyzing the appellant’s disability discrimination affirmative defense , the
administrative judge found the appellant did not prove that his disability was a
motivating factor in his reassignment and reduction in grade . ID at 15-16. We
therefore need not reach whether the ap pellant’s disability was a “but -for” cause of the
agency’s action. See Pridgen , 2022 MSPB 31 , ¶ 40 .
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
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, th en you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at the ir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 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
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 o f competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal ca ses with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circ uit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants be fore the 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 | BROKMEIER_MICHAEL_J_DE_0752_14_0325_I_1_FINAL_ORDER_2022789.pdf | 2023-04-18 | null | DE-0752 | NP |
3,263 | https://www.mspb.gov/decisions/nonprecedential/COFFEY_DEANA_K_CH_844E_20_0449_I_1_FINAL_ORDER_2022807.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEANA K. COFFEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -20-0449 -I-1
DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deana K. Coffey , Dewitt, Michigan, pro se.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency , the Office of Personnel Management (OPM), has filed a
petition for review of the initial decision, which reversed its decision denying the
appellant’s disability retirement benefits. On petition for review, OPM argues
that the administrative judge erroneously found that the appellant met the criteria
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
for such benefits . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new an d
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition fo r review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 We ORDER OPM to grant the appe llant disability retirement benefits.
OPM must complete this action no later than 20 days after the date of this
decision.
¶3 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the a ctions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶4 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the i nitial 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 da tes and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
3
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be pai d 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 fi le your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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 su mmary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which c ases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable ti me
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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
about whether a particular for um is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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). 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
6
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
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COFFEY_DEANA_K_CH_844E_20_0449_I_1_FINAL_ORDER_2022807.pdf | 2023-04-18 | null | CH-844E | NP |
3,264 | https://www.mspb.gov/decisions/nonprecedential/WEISS_LINDA_W_NY_0707_16_0149_X_1_ORDER_2022083.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LINDA W. WEISS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0707 -16-0149 -X-1
DATE: April 17, 2023
THIS ORDER IS NONPRECEDENTIAL1
Conor D. Dirks , Esquire, James Garay Heelan , Esquire, and Debra L. Roth ,
Esquire , Washington, D.C., for the appellant.
Kendall Scott Rocio , Washington, D.C., for the agency .
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER TO SHOW CAUSE
¶1 In a June 15, 2022 Order, the Board affirmed the compliance initial decision
to the extent it found the agency in noncompliance with its obligations to cancel
the appellant’s removal from her Senior Executive Service (SES) position as the
Director of Albany Stratton VA Medical Center , reinst ate her to that position, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative jud ges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
provide her with back pay, interest on the back pay, and other benefits. Weiss v.
Department of Veterans Affairs , MSPB Docket No. NY -0707 -16-0149 -C-1, Order
(June 15, 2022) (Order) ; Weiss v. Department of Veterans Affairs , MS PB Docket
No. NY -0707 -16-0149 -C-1, Compliance Petition for Review (CPFR) File, Tab 5;
Weiss v. Department of Veterans Affairs , MSPB Docket No. NY -0707 -16-0149 -C-
1, Compliance File, Tab 11, Compli ance Initial Decision (CID), Tabs 13, 15.
Accordingly, t he Board ordered the agency to submi t to the Clerk of the Board ,
within 20 days from the date of the Order, satisfactory evidence of compliance ,
including evidence and a detailed narrative explaining how the back pay was
calculated and demonstrating that t he appellant had been returned to the status
quo ante. Order, ¶¶ 15 -16.
¶2 On July 5, 2022, the agency submitted a narrative statement and evidence of
compliance to the Board showing that it had cancelled the appellant’s removal .
Weiss v. Department of Vete rans Affairs , MSPB Docket No. NY -0707 -16-0149 -
X-1, Compliance Referral File (CRF) , Tab 3 at 4-13. The agency stated that it
had an overriding interest to not return the appellant to the position from which
she was removed but that she would be placed in the newly created position of
Senior Advisor to the Veteran’s Integrated Service Network Director , which
carried equivalent responsibility and pay to her prior position.2 Id. at 6-7. The
agency stated that it had determined the appellant was entitled to a back pay
award in the amount of $1,261,839 and that it would pay her this amount minus
the amount she owed to the Office of Personnel Management (OPM) as
reimbursement for annuity payments she received prior to her reinstatement. Id.
at 5. The agency explained and provided exhibits purporting to show that it had
2 The agency asserted that its overriding interest existed because the prior position was
encumbered, the appellant had not operated an agency medical center since 2016 and
would therefore be unfamiliar with the agency’s policies and procedures for operating
one, and replacing the existing Director of the Albany Stratton VA Medical Center
would disrupt the medical center’s operations and could have a potentially negative
impact on the care provided to veterans. CRF, Tab 3 at 6.
3
calculated the back pay award by considering the relevant SES pay caps and using
“modal ratings ” for SES employees in each fiscal year of the back pay period to
ascertain the appellant’s approp riate salary, including performance awards and
adjustments . Id. at 5, 15 -19. The agency stated that it “anticipate [d] that
submission of all pay adjustments and awards payable along with benefits
documents and time -cards to [the Defense Finance and Accounting Service
(DFAS)] for final processing and payout will be completed by July 8, 2022. ” Id.
at 5-6.
¶3 In a July 26, 2022 response to the agency’s first compliance submission, the
appellant argued that the agency had fai led to show it was in substantial
compliance with the Board ’s orders . CRF, Tab 4. In particular, while she
acknowledged that the agency had reinstated her to an “appropriate” SES
position, she argued that the agency had not paid her any back pay or provi ded a
reasonable schedule for making such payment, failed to calculate interest on the
back pay award, did not explain how it would restore the appellant’s benefits, and
failed to provide sufficient evidence showing that references to her removal had
been expunged from her personnel file. Id. at 5-8.
¶4 On October 14, 2022, the agency submitted a supplemental compliance
submission stating that the High Visibility Team at DFAS had confirmed it had
received all information necessary to process the appellant’s b ack pay award and
that—though it refused to provide a definite date —projected payment could be
processed by November 10, 2022. CRF, Tab 5. The agency indicated that, once
the payment was processed, DFAS would provide an accounting of how the back
pay payment and interest were calculated. Id. at 4.
¶5 On January 30, 2023 , the appellant requested that the Board issue a show
cause order directing the agency to show cause why sanctions should not be
imposed for its nearly 7 months of noncompliance, noting that she had still not
received any back pay or retroactive benefits , any substantive updates about the
4
status of her back pay award , or any explanation regarding how DFAS intended to
calculate her back pay award or interest . CRF, Tab 6.
¶6 On February 21, 2023, the agency submitted a second supplemental
compliance submission stating that , on December 12, 2022, it resubmitted to
DFAS all of the paperwork necessary to process the appellant’s back pay award
and ensured that all necessary updated timecards associated with her
reinstatement were submitted . CRF, Tab 7 at 5. The agency provided copies of
the documents it purportedly submitted or resubmitted to DFAS, including,
among other things , the Standard Form 50 (SF-50) documenting the appellant’s
reassignm ent to the Senior Advisor position effective May 1, 2016; additional
SF-50s documenting her retroactive performance awards during the back pay
period; and documents from OPM reflecting that she received a total net annuity
overpayment in the amount of $929 ,024 or $927,143 .69, though the page
indicating the higher amount is partially illegible . Id. at 9-33. The agency stated
that the High Visibility Team met with DFAS on January 23, 2023 , at which
“DFAS represented that it is suffering an extreme backlog i n payment processing
[but that] it has prioritized the processing of [the appellant’s] payment pursuant to
the Board’s Order.” Id. at 5. The agency also provided what appeared to be an
updated back pay calculation , though this document is also partially illegible. Id.
at 7. The agency stated that its payroll employees “continue to interface with
DFAS and urge them to complete processing as soon as possible, but the Agency
continues to lack a mechanism to affirmatively compel DFAS to act on a c oncrete
timeline.” Id. at 6.
¶7 On March 13, 2023, the appellant submitted a second request that the Board
issue an order to the agency to show cause why sanctions should not be imposed
for its continued noncompliance . CRF, Tab 8. Therein, t he appellant ar gued ,
among other things, that the agency ha d failed to show good cause for its
unreasonable compliance delay s, including why it waited over a month to engage
with DFAS after it missed the November 10, 2022 anticipated deadline for
5
payment and another 6 we eks after resubmitting the documentation to have a
meeting with the DFAS employees . Id. In addition, the appellant questioned why
it was necessary for the agency to resubmit all the back pay paperwork to DFAS
in December 2022 and whether the agency in fa ct previously failed to ensure that
DFAS had all the required paperwork. Id. at 6. The appellant also challenged the
agency’s failure to provide any evidence or information regarding the High
Visibility Team ’s meeting with DFAS . Id. at 7.
¶8 In a March 31, 2023 subm ission, the appellant clarified that she is still
challenging the agency’s compliance with the Board’s order s to the extent the
agency has failed to provide her back pay with interest and benefits , adequate
calculations regarding her back pay award, or any information regarding how the
agency intends to restore her sick and annual leave. CRF, Tab 9. Although the
appellant noted that she does not see any documents in her electronic Official
Personnel File referencing her removal, she argues th at the agency has not
demonstrated compliance with its obligation to expunge references to her removal
from her personnel file as it has failed to submit any evidence on this point. Id.
at 7. The appellant stated that she is not challenging that the agen cy has
reinstated her to a substantially equivalent position. Id. at 8.
¶9 On April 3, 2023, the appellant submitted a third request that the Board
issue an order to the agency to show cause why sanctions should not be imposed
for its continued noncompliance . CRF, Tab 10. On April 12, 2023, the appellant
submitted a fourth request for a show cause order. CRF, Tab 11.
¶10 Pursuant to 5 U.S.C. § 1204 (e)(2)(A) and 5 C.F.R. § 1201.183 (c), the Board
has authority to impose sanctions against the agency official responsible for
noncompliance with a Board order. Such sanctions may include a ruling adver se
to the agency and certification to the Comptroller General of the United States
that no payment is to be made to certain agency employees found to be in
noncompliance with the Board’s order. 5 C.F.R. § 1201.183 (e). The agency
identified Ms. Rima -Ann Nelson , Assistant Undersecretary for Health for
6
Operations, Senior Executive Service , as the agency official charged with
complying with the Board’s order. CRF, Tab 3 at 4.
¶11 As noted abov e, in the June 15, 2022 Order, the Board affirmed the
compliance initial decision and ordered the agency to submit, within 20 days,
satisfactory evidence of compliance, i.e., evidence showing that the agency has
cancelled the appellant’s removal, reinstate d her to her former position effective
January 12, 2016 , and provide d her with back pay, interest on back pay, and other
benefits. CPFR File, Tab 5 ; CID at 15 . It has been more than 9 months since
issuance of our Order, but the agency has not shown that it has provided the
appellant the back pay award with interest and restored benefits, nor has it
provided adequate explanation or legible documents regarding its calculation s of
the back pay, interest, or benefits owed to her . Although t he agency asserts that
DFAS is to blame for the delay , the Board has held in prior cases that the agency
is liable for DFAS ’s delay because the agency chose to use DFAS as its paying
agent. See Tichenor v. Department of the Army , 84 M.S.P.R. 386 , ¶ 8 (1999) . In
addition, the agency has not provided documentary evidence or an affidavit
showing that references to the appellant’s removal have been purge d from her
personnel file.
¶12 Accordingly, pursuant to 5 U.S.C. § 1204 (e)(2)(A) and 5 C.F.R.
§ 1201.183 (c), the agency and Ms. Nelson are hereby DIRECTED TO SHOW
CAUSE why sanctions should not be imposed for the agency’s failure to comply
with the Board’s June 15, 2022 Order . The agency and Ms. Nelson shall submit
their written responses within 21 days of the date of this Order. If no response is
received within this time frame, the Board will issue an order requiring the
agency and Ms. Nelson to appear in person before the Board at the Headquarters
of the Merit Systems Protection Board in Washington, D.C. See 5 C.F.R.
§ 1201.183 (c).
¶13 The appellant shall file any response to the agency’s and Ms. Nelson’s
submissions within 21 days of the date of service of the submissions. If the
7
appellant fails to resp ond, the Board may assume she is satisfied and dismiss the
petition for enforcement .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WEISS_LINDA_W_NY_0707_16_0149_X_1_ORDER_2022083.pdf | 2023-04-17 | null | NY-0707 | NP |
3,265 | https://www.mspb.gov/decisions/nonprecedential/SEPULVEDA_RAMIRO_C_DA_0752_17_0220_I_1_FINAL_ORDER_2022102.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAMIRO C. SEPULVEDA,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -17-0220 -I-1
DATE: April 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony W. Walluk , Esquire, San Antonio, Texas, for the appellant.
Grant Gardner , Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s action removing the appellant for violating a last -chance
agreement (LCA). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision c ontains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Bo ard’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 n ew and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for r eview and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Prior to his removal, the appellant was a GS -12 Customs and Border
Protection (CBP) Officer with the U.S. Custom s and Border Protection in the
Laredo, Texas field office. Initial Appeal File (IAF), Tab 1 at 3. His primary job
duty was to process commercial tract or-trailers at the World Trade Bridge while
assigned to a boot h at a primary lane, which included processing the vehicle and
driver information, conducting x -rays of the vehicle as applicable, and referring
the vehicle to a secondar y lane for further inspection as needed. Hearing
Transcript ( HT) at 281:11 -283:19 (te stimony of a supervisor), 124:6 -17
(testimony of the appellant). On April 1, 2016, the agency sustained a proposal to
remove the appellant based on charges of failure to follow policy and failure to
provide honest and complete information. IAF, Tab 6 at 25-28. Subsequently, on
April 13, 2016, the appellant and the agency executed a LCA, wherein the agency
agreed to mitigate the proposed removal to a 21 -day suspension. Id. at 29 -32.
The appellant agreed that the LCA would be effective for a 1 -year perio d, during
which “any form of misconduct” he engaged in would constitute a “violation of
3
the [a]greement.” Id. at 29. The appellant further indicated his understanding
that any violation of the LCA would “result in the implementation of the
[r]emoval [d]e cision” and that he waived “any and all appeal rights regarding the
removal in any forum,” in the event that the agency reinstated his removal based
on his violation of the LCA. Id. at 30.
¶3 On February 8, 2017, the agency notified the appellant of its deci sion to
reinstate his removal, effective immediately, as a result of his violation of the
LCA. Id. at 11 -12. Specifically, the agency determined that the appellant
violated the provision of the LCA requiring him to abstain from misconduct
when, on Septem ber 20, 2016, he used his Government computer for nonofficial
purposes during his official duties in violation of agency directives. Id.
¶4 The appellant timely filed an appeal of his removal with the Board. IAF,
Tab 1. Following a hearing, the administra tive judge issued an initial decision
reversing the removal action. IAF, Tab 34, Initial Decision (ID). The
administrative judge found that the LCA was valid . ID at 4. However, the
administrative judge determined that the waiver of Board appeal rights in the
LCA was unenforceable because the agency breached the agreement . ID at 4, 10.
Specifically, she found that the agency acted arbitrarily and capriciously by
invoking the LCA based on the appellant’s personal internet use at his primary
lane. ID at 9-10. In reaching this determination, she made the following
findings: it is commonly understood in the South Texas region that personal
internet use is permitted, so long as it does not interfere with one’s official duties;
on-duty personal internet us e is permitted; there is no evidence of any written
policy prohibiting personal internet use specifically at the primary lanes; there is
no formal, standardized method by which employees are notified of this alleged
prohibition; and there is no evidence to dispute the appellant’s assertions that his
personal internet use on September 20, 2016, took place during down time at his
lane and did not interfere with his duties. Id. Having found that the agency
breached the LCA, she reversed the agency’s removal action. ID at 10.
4
¶5 The agency timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The appellant filed a response, to which the agency replied. PFR
File, Tabs 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 On petition for review, the agency challenges all of the administrative
judge’s findings, arguing that she made erroneous findings of fact in determining
the agency acted in bad faith and made legal and factual errors in finding that the
appellant’s personal internet use took place d uring down time and did not
interfere with his official duties. PFR File, Tab 1 at 7, 18. As discussed below,
the agency’s arguments do not provide a basis for review.
The administrative judge applied the correct standard of proof.
¶7 In a traditional chap ter 75 adverse action appeal, the agency bears the
burden to show by preponderant evidence that the alleged misconduct occurred.
5 U.S.C. § 7701 (c)(1)(B); Walker v. Department of the Army , 102 M.S.P.R. 474 ,
¶ 4 (2006). The Board lacks jurisdiction, however, to hear an appeal involving an
action taken pursuant to an agreement in which the appellant waived his Board
appeal rights. Smith v. Department of the Interior , 113 M.S.P.R. 592 , ¶ 6 (2010).
A different standard of proof applies in such cases. In order to demonstrate that
the appellant’s waiver of his appeal rights in an agreement was unenforceable, the
appellant —not the agency —must show that: (1) he complied with the agreement;
(2) the agency material ly breached the agreement or acted in bad faith; (3) he did
not voluntarily enter into the agreement; or (4) the agreement resulted from fraud
or mutual mistake. Id.; 5 C.F.R. § 1201.56 (b)(2)(i) (A) (indicating that the
appellant bears the burden of proving jurisdiction by preponderant evidence).
¶8 The agency asserts that the administrative judge shifted the jurisdictional
burden of proof from the appellant to the agency when she stated that “there is no
evidence to dispute the appellant’s assertions that his personal internet use on
September 20, 20 16, took place during down time at his lane and did not interfere
5
with his duties.” PFR File, Tab 1 at 18 -19; ID at 9 -10. However, the
administrative judge clearly stated both in her decision and at the hearing that the
appellant had to prove jurisdictio n over his appeal by preponderant evidence. ID
at 3; HT at 175:16 -19. Moreover, the administrative judge applied the correct
standard of proof. ID at 3. The administrative judge’s statement that the agency
has not disputed the appellant’s assertions do es not constitute shifting the burden
of proof to the agency.
The agency has failed to provide a basis for disturbing the administrative judge’s
findings regarding the agency’s limited personal use internet policy.
¶9 The agency contends that the administrati ve judge made factual errors when
she found that it is commonly understood in the South Texas region that personal
internet use is permitted so long as it does not interfere with one’s official duties;
that on -duty personal internet use is permitted; that there is no written policy
prohibiting internet use at primary lanes; and that there is no formal method by
which employees are notified of this alleged prohibition. PFR File, Tab 1 at 9 -17.
Specifically, the agency alleges that, contrary to the administ rative judge’s
findings, there were written policies prohibiting personal internet use at the
primary lanes and that the appellant was formally notified of these written
policies. Id. at 12-14. Specifically, the agency relies on the ethical regulations
governing use of Government property by Federal employees, the U.S. Customs
and Border Protection Standards of Conduct, and a Laredo Field Office Integrity
Muster (dated February 9, 2015, and initialed by the appellant on December 29,
2016) to support its proposition.2 PFR File, Tab 1 at 13-14; IAF, Tab 7 at 30-31,
Tab 8 at 33, Tab 6 at 12.
2 In relevant part, t he local muster states that “. . . the use of government office
equipment and computers is for authorized purposes only . However, employees may
during non -work time use government office equipment and computers on a ‘limited
personal use ’ basis only.” IAF, Tab 7 at 30 (emphasis in original). “Limited personal
use” is defined as “. . . use that involves minimal additiona l expenses to the
government, is performed during the employee’s non -work time, does not interfere with
the mission or operations of a department or agency, and does not violate the Standards
6
¶10 In resolving credibility issues, an administrative judge must consider factors
such as th e contradiction of the witness’s version of events by other evidence or
its c onsistency with other evidence. Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987).3 The Board must give deference to an
administrative judge’s credibility determinations when, as here, they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sou nd” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002). When , as here, an administrative jud ge has
heard live testimony, her credibility determinations must be deemed to be at least
implicitly based upon the demeanor of the witnesses. Little v. Department of
Transportation , 112 M.S.P.R. 224 , ¶ 4 (2009).
¶11 In finding that it is commonly understood that personal internet use is
permitted as long as it does not interfere with one’s official duties, the
administrative judge thoroug hly reviewed the numerous written agency directives
regarding personal internet use. ID at 10 n.8. However, she credited the
testimony she heard regarding the commonly accepted interpretation and
of Ethical Conduct fo r Employees of the Executive Br anch . . . .” Id. An employee’s
“non -work time” is defined as “time when an employee is not otherwise expected to be
addressing official business provided such use does not interfere with or impede CBP
mission or operations.” Id. at 31 (emphasis in original). The muster also provides
numerous examples of authorized use and inappropriate personal uses, none of which
includes a general prohibition of internet use on the primary lanes and allows for
limited personal use of the internet. Id. at 31-32.
3 In Hillen , the Board articulated factors to consider in resolving credibility issues. The
Board held 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
inconsistent statement by the witness; (4) a witness ’s bias, or lack of bias; (5) the
contradiction of the witness ’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness ’s version of events ;
and (7) the witness ’s demeanor. Hillen , 35 M.S.P.R. at 458.
7
application of the rules concerning on -duty personal inter net use. Id. After
applying the factors set forth in Hillen , 35 M.S.P.R. at 458, the administrative
judge did not credit the deciding official’s and supervisor’s testimony that there is
a longstanding, absolute prohibition on personal internet use on duty at primary
lanes. ID at 7. She did not credit their testimony because the deciding official
acknowledged there was no written policy that specif ically distinguishes between
on-duty personal internet use at primary lanes versus other locations, another
CBP officer testified that it was his understanding that limited personal internet
use is permissible at the primary lanes, and the supervisor testified that some
officers access t he internet for personal use at the primary lanes. Id. Rather, the
administrative judge credited both the appellant’s and the deciding official’s
testimony that personal int ernet use is permitted while on duty so long as it does
not interfere with one’s duties. ID at 6-7.
¶12 While the agency argues that the appellant received notice of the agency’s
internet policies, the administrative judge’s finding was specific to the alleged
prohibition of personal internet use specifically at the primary lanes. PFR File,
Tab 1 at 16 -17; ID at 9. In finding that there is no formal, standard method by
which employees are notified of the alleged prohibition of personal internet use
specifically at the primary lanes, the administrative judge did not credit the
deciding official ’s or supervisor’s testimony. ID at 7, 9. After applying the
factors set forth in Hillen , 35 M.S.P.R. at 458, the administrative judge noted that
the deciding official testified that he had no knowledge of whether or how such
information is disse minated to employees and that the supervisor testified that the
only way for an employee to know such conduct is prohibited is for the supervisor
to bring it to their attention if they notice an employee on the internet. ID at 7.
¶13 The administrative judg e properly considered factors, such as the
contradiction of witness testimony and its consistency with the record, to make
well-reasoned credibility determinations. See Hillen , 35 M.S.P.R. at 458. The
agency has failed to provide a basis for disturbing t hese credibility findings.
8
Accordingly we affirm the administrative judge’s findings that it is commonly
understood in the South Texas region that pe rsonal internet use is permitted , so
long as it does not interfere with one’s official duties; on -duty per sonal internet
use is permitted; there is no written policy prohibiting personal internet use
specifically at the primary lanes; and there is no formal, standardized method by
which employees are notified of this alleged prohibition . ID at 9.
The agency has failed to provide a basis for disturbing the administrative judge’s
finding that the appellant ’s personal internet use occurred during down time at his
primary lane .
¶14 The agency also disputes the administrative judge’s finding that there is no
evidence to dispute the appellant’s assertion that his personal internet use on
September 20, 2016 , took place during down time and did not interfere with his
duties. PFR File, Tab 1 at 18. The agency alleges that it provided evidence that
unequivocally disproves the appellant’s assertion that he did not access the
internet for personal use during his official duties. Id. at 20 -23. The agency then
argues that, because the personal internet use occurred during the appellant’s
official duties, the question of whether it interfered with his official duties is
irrelevant. Id. at 23 -25. However, based o n our review of the record, we agree
with the administrative judge that the appellant only used the internet while on
duty as the primary lane on September 20, 2016, while he had no official duties to
perform, i.e., he was on down time because there were n o vehicles in his lane to
process. ID at 8. As such, we also agree with the administrative judge’s finding
that the appellant’s personal internet use did not interfere with his job duties. ID
at 8-9.
¶15 After applying the factors set forth in Hillen , 35 M.S.P.R. at 458, the
administrative judge credited the appellant’s testimony, which was further
supported by the record evidence, that he only used the internet while on duty at
the primary lan e when there were no vehicles for him to process. ID at 6 -8. In
making her determination, the administrative judge analyzed the agency’s
9
processing report for September 20, 2016, which shows the number of vehicles
processed at the appellant’s primary lane, analyzed and reconciled conflicting
testimony from multiple wi tnesses, and addressed the accident that occurred in
the appellant’s primary lane. ID at 8 -9; IAF, Tab 14 at 32. Despite the agency’s
allegations, the administrative judge’s failure to mention all of the extensive
testimony and evidence does not mean tha t she did not consider it in reaching her
decision. See Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶16 The agency argues that the Board need not defer to the administrative
judge’s credibility determination regarding the appellant’s testimony that he only
accessed the internet when there were no vehicles for hi m to process because she
did not explicitly indicate that her credibility determination was based on the
observation of the demeanor of the witness. PFR File, Tab 1 at 21. However, as
noted above, when, as here, an administrative judge has heard live tes timony, her
credibility determinations must be deemed to be at least implicitly based upon the
demeanor of the witnesses. Little , 112 M.S.P.R. 224, ¶ 4. The agency has
submitted insufficient evidence and argument to demonstrate error by the
administrative judge in crediting the appellant’s testimony, resolving conflicting
witness testimony, and considering the evidence.4 The administrative judge made
reasonable credibility determinations based on a review of the record as a whole,
and we find no basis to disturb them on review. See Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016) (explaining the high
level of deference the Board must give to demeanor -based credibility findings);
Haebe , 288 F.3d at 1302.
4 In relevant part, the administrative judge properly noted that the agency proffered no
evidence explaining how to interpret the technical data purporting to show the
appellant’ s internet usage. ID at 10 n.7. The agency’s failure to submit such evidence
does not provide a basis for disturbing the administrative judge’s well -reasoned
credibility determinations . Nor does it provide a reason for remanding the appeal for
further c redibility findings .
10
¶17 For the reasons noted above, we find that the agency has not established any
basis for granting the petition for review. Accordingly, we affirm the
administrative judge’s initial decision.
ORDER
¶18 We ORDER the agency to cancel the removal action and retroactively
restore the appellant effective February 8, 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.
¶19 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar da ys 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 ou t 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 after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carr ied 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).
11
¶22 For agencies whose payroll is administered by either t he 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 attache d. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requir ements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG 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
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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 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
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 Federal Circuit), within 30 calendar days after yo u
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 o ther security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
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 jurisdi ction.
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 Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll 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 i s 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 p ayments (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 document ation 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 und ertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annu ity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If intere st is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FL SA, 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. | SEPULVEDA_RAMIRO_C_DA_0752_17_0220_I_1_FINAL_ORDER_2022102.pdf | 2023-04-17 | null | DA-0752 | NP |
3,266 | https://www.mspb.gov/decisions/nonprecedential/CARTER_MARK_R_CH_0432_16_0400_I_1_REMAND_ORDER_2022106.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK R. CARTER,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
CH-0432 -16-0400 -I-1
DATE: April 17, 2023
THIS ORDER IS NONPRECEDENTIAL1
Mark R. Carter , Detroit, Michigan, pro se.
Chieko Clarke , Esquire, and Josh Hildreth , Esquire, Alexandria , Virginia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal based on unacceptable per formance under 5 U.S.C.
chapter 43 and found that he did not prove his affirmative defenses. For the
reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
VACATE the initial decision , and REMA ND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal challenging his removal from Federal service
for unacceptable performance pursuant to chapt er 43 . Initial Appeal File (IAF),
Tab 1. After a hearing, the administrative judge found that the agency proved the
unacceptable performance charge by substantial evidence. IAF, Tab 88, Initial
Decision ( ID) at 2-18. The administrative judge also found that the appellant did
not prove his affirmative defenses of harmful procedural error, race and disability
discrimination, and violation of the merit system principles found at 5 U.S.C.
§ 2301 (b). ID at 18 -43. Accordingly , the administrative judge affi rmed the
removal. ID at 2, 44.
¶3 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply . Petition for Review (PFR) File,
Tabs 7, 9 -10. The appellant argues the following on review : (1) his production
critical element is invalid because it was measured by his supervisor’s subjective
assessment of his work product ; (2) his supervisor subjected his work to
“heightened scrutiny” ; (3) the ag ency committed harmful error ; (4) the agency’s
removal decision is not in accordance with law ; (5) he is entitled to the Bruner
presumption , see Bruner v. Office of Personnel Management , 996 F.2d 290 (Fed.
Cir. 1993) ; and (6) the administrative judge abused her discretion by denying his
motion for sanctions and granting the agency’s motion to compel discovery. PFR
File, Tab 7. Although we find the appellant’s arguments do not warrant
disturbing the initial decision , we must nonetheless remand this appeal for further
adjudication in light of the recent decision by the U.S. Court of Appeals for the
Federal Circuit in Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021), issued after the initial decision in this
matter .
3
¶4 We first address the a ppellant’s assertion that his production critical
element is invalid under 5 U.S.C. § 4302 (c)(1)2 because it was measured by his
supervisor’s subjective assessment of his work product. PFR File , Tab 7 at 18,
24-29, Tab 10 at 7 -8. We agree with the administrative judge that the appellant’s
production element is valid because he encumbered a technical position —Patent
Examiner —that allowed for and required some subjective discretion by his
superviso r when determining his work quality. ID at 9 -10; see Greer v.
Department of the Army , 79 M.S.P.R. 477, 483 -84 (1998).
¶5 Next, the ap pellant asserts that his supervisor applied GS -12 to GS -15 level
performance standards to his GS -11 position and subjected his work to
“heightened scrutiny.” PFR File, Tab 7 at 24 -26, 29 -30. However, t he agency
expressly reduced the baseline GS -12 Patent Examiner performance expectations
by 10% because the appellant encumbered a GS-11 position. IAF, Tab 9 at 43,
Tab 11 at 9; HT 12:19 -13:14. Similarly, the record evidence shows that the
agency neither changed nor otherwise increased the appellant’s perfo rmance
standards during or after his performance improvement plan (PIP), nor did his
supervisor subject his work to “heightened scrutiny.” ID at 14.
¶6 The appellant continues to assert on review , as he did before the
administrative judge, that the agency co mmitted the following harmful errors:
(1) removing him more than 30 days after the expiration of the notice period
required by 5 U.S.C. § 4303 (b)(1)(A), which he argues constitutes an
unacceptable -performance removal statute of limitations pursuant to 5 U.S.C.
§ 4303 (c)(1); (2) failing to extend his oral and written response time by
60-90 days and failing to tape record his December 11, 201 5 oral reply in
violation of the collective bargaining agreement; and (3) failing to consider his
2 Until recently, this provision was codified at 5 U.S.C. § 4302 (b)(1). See National
Defense Authorization Act for Fiscal Year 2018, Pub. L . No. 115 -91, § 1097(d)(1),
131 Stat. 1283, 1619 (2017).
4
medical condition prior to his removal.3 PFR File, Tab 7 at 20 -24, 30 -37, Tab 10
at 8-9; IAF, Tab 55, Tab 70 at 2. We agree with the administrative judge, for the
reasons stated in the initial decision , that the appellant failed to prove harmful
error, i.e., that any agency error was likely to have caused it to reach a conclusion
different from the one it would have reached in the absence or cure of the error .
ID at 18 -27; see LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453,
¶ 14 (2016); 5 C.F.R. § 1201.4 (r).
¶7 Along the same lines, the appellant contends that the agency lacked the
legal authority to remove him beyond the 30 -day period in 5 U.S.C. § 4303 (c)(1)
and thus his removal was not in accordance with law. PFR File, Tab 7 at 20 -21;
see 5 U.S.C. § 7701 (c)(2)(C). Even assuming that the appellant timely raised this
affirmative defense before the administrative judge, we find no basis to disturb
the initial decision. The “not in accordance with law” defense is directed at the
decision itself, i.e., was the decision in its entirety in accordance with law? See
Handy v. U.S. Postal Service , 754 F.2d 335 , 337 -38 (Fed. Cir. 1985); see also
Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 683 -84 (1991)
(confirming that an appealable action will only be reversed as not in accordance
with law if there is no legal authority for the agency’s action). Despite t he
appellant’s contrary assertions, the agency could lawfully remove him based on
his unacceptable performance. 5 U.S.C. § 4303 (a); 5 C.F.R. §§ 432.102 (a),
432. 105. As discussed , the agency’s failure to abide by the 30 -day period in
5 U.S.C. § 4303 (c)(1) was not a harmful error. See supra ¶ 6; ID at 18 -20; see
3 The deciding official was required to consider the appellant’s medical condition once
he raised it in his written and oral responses to the proposed removal. See 5 C.F.R.
§ 432.105 (a)(4)(iv); IAF, Tab 4 at 49 -50, Tab 15 at 31 -32. The deciding official
testified that he considered every issue that the appellant raised in his oral response,
includi ng his medical condition, prior to removing him for unacceptable performance.
HT 71:25 -72:23 (testimony of the deciding official). Aside from his bare assertion to
the contrary, there is no record evidence to suggest that the deciding official failed to
consider the appellant’s medical condition.
5
also Salter v. Department of the Treasury , 92 M.S.P.R. 355, ¶¶ 6 -8 (2002) (noting
that 5 U.S.C. § 4303 (c)(1) is a procedural right that is subject to harmful error
analysis).
¶8 Further, the appellant misinterprets 5 U.S.C. § 4303 and the Board’s case
law to the extent he as serts that the agency was required to effect his removal
within 1 year of the commencement of the PIP. PFR File, Tab 7 at 23 -24. This
argument was considered and rejected by the Board in White v. Department of
Veterans Affairs , 120 M.S.P.R. 405 , ¶¶ 6 -7 (2013). In White , the appellant argued
that the agency’s demotion action was improper because the April 2012 proposal
notice was not issued until more than a year after the commencement of the PIP
in February 2011. Id., ¶ 7. The Board considered whether the agency had
complied with the following regulatory provisions: (1) once an employee has
been afforded a reasonable opportunity to improve, an agency may propose a
reduction in grade or removal action if the employee’s performance “during or
following” the PIP is unacceptable in one or more of the critical elements
involved in the PIP; (2) if an employee who has been placed on a PIP performs
acceptably for 1 year (starting with the commencement of the PIP), he is entitled
to a new PIP if his performance again becomes unacceptable; and (3) a proposed
reduction in grade or removal may be based on instances of unacceptable
performance th at occur within a 1 -year period ending on the date of notice of
proposed action. Id., ¶ 6 (citing 5 C.F.R. § 432.105 (a)(1) -(3)). We find that the
agency has complied with these provisio ns. The appellant’s performance became
unacceptable immediately following the PIP in the production critical element,
which was the subject of the PIP. IAF, Tab 4 at 91-94. The notice of proposed
removal was issued on November 5, 2015, and the agency pr operly relied on
instances of unacceptable performance occurring between March 8 and May 30,
2015, which is within 1 year of the notice of proposed removal. Id. Accordingly,
the appellant has not shown that the removal decision is not in accordance with
law.
6
¶9 Next, t he appellant alleges that he was entitled to the Bruner presumption.
PFR File, Tab 7 at 34 -36; see Bruner , 996 F.2d at 294 . The administrative judge
did not discuss the Bruner presumption in the initial decision. Bruner holds that
an employee’s removal for physical inability to perform the essential functions of
his position constitutes prima facie evidence that he is entitled to disability
retirement, after which the burden shifts to the Office of Personnel Management
to produce eviden ce sufficient to find that the applicant is not entitled to
disability retirement benefits. Bruner , 996 F.2d at 294. Bruner does not apply to
this appeal because the appellant was removed for unacceptable performance, not
physical inability to perform th e essential funct ions of his position. ID at 4.
¶10 The appellant further contends that the administrative judge abused her
discretion by (1) denying his sanctions motion based on the agency’s initial
failure to include his full written response to the prop osed removal in the agency
file, and (2) granting the agency’s motion to compel over the appellant’s
objection that the discovery requests were improperly served by email. PFR File,
Tab 7 at 19-20, 37 -40; IAF, Tabs 42 -43. We find no basis to conclude tha t the
administrative judge abused her discretion. Although the appellant disagrees with
the administrative judge’s decision to deny his sanctions motion, he has provided
no legitimate argument that she abused her discretion, especially considering that
the agency corrected its inconsequential error within a few days. See Pecard v.
Department of Agriculture , 115 M.S.P.R. 31, ¶ 15 (201 0); IAF, Tab 4 at 53 -88,
Tab 15. Similarly, although the appellant argues that 5 C.F.R. § 1201.73 (a)
prohibits agencies from serving discovery requests via email, and analogizes to
Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure, we agree with the
administrative judge that the Board is not bound by the Federal Rules of Civil
Procedure and looks to them solely for general guidance. IAF, Tab 43; see Social
Security Administration v . Long , 113 M.S.P.R. 190, ¶ 10 (2010), aff’d , 635 F.3d
526 (Fed. Cir. 2011); 5 C.F.R. § 1201.72 (a). We find that the administrative
judge was not bound to follow Rule 5(b)(2)(E) here and she did not abuse her
7
discretion by requiring the ap pellant to respond to the agency’s discovery
requests. See Key v. General Services Administration , 60 M.S.P.R. 66 , 68 (1993)
(stating that a n administrative judge has broad discretion in ruling on discovery
matters).
¶11 In his petition for review, t he appellant does not challenge the
administrative judge’s finding that he failed to prove his race discrimination
defense. PFR File, Tab 7, Tab 10 a t 9. In analyzing the appellant’s race
discrimination claim , the administrative judge identified the legal standard set
forth in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), she
discussed the various methods of direct and circumstantial evidence, and she
concluded that the appellant did not prove that his race was a motivating factor in
the removal decision. ID at 27-34. The Board has since overruled Savage to the
extent it held that the McDonnell Douglas framework is not applicable to Board
proceedings. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 25
(citing McDonnell Douglas Corporation v. Green , 411 U.S. 7 92, 802 -04 (1973)) .
Nonetheless, the outcome of this appeal under Pridgen would be the same as that
arrived at by the administrative judge. Notably, under Pridgen , to obtain any
relief, the appellant must still show , at a min imum, that the prohibited
consideration of race was a motivating factor in the agency’s decision to remove
him, Pridgen , 2022 M SPB 31 , ¶¶ 20 -22, and we agree with the administrative
judge that the appellant failed to m ake this showing. ID at 27 -34. Because the
appellant failed to prove that race was a motivating factor, he necessaril y failed to
prove it was a “but -for” cause of his removal. See Pridgen , 2022 MSPB 31 , ¶ 22.
¶12 The appellant also does not challenge the administrative judge’s finding
that he failed to prove his disability discrimination defense , including his
8
disparate treatment and failure to accommodate claims .4 PFR File, Tab 7, Tab 10
at 9. Nevertheless, we clarify the administrative judge’s analysis of the
appellant’s disparate treatment claim. The appellant alleged discrimination based
on postherpetic neuralgia, i.e., post -shingles nerve pain, which began i n
mid-May 2015 , before the May 30, 2015 completion of the first post -PIP
maintenance period. IAF, Tab 55 at 33 -35, Tab 70 at 7; HT 241:14 -24 (testimony
of the appellant). Assuming without deciding that the appellant’s postherpetic
neuralgia constitutes a disability as defined by 42 U.S.C. § 12102 , he has not
provided any evidence to show that his disability was a motivating factor in the
agency’s decision to remove him for unacceptable performan ce. E.g., IAF,
Tab 15 at 31 -32, Tab 55, Tab 80; HT 71:25 -72:20, 84:5 -11 (testimony of the
appellant); see Pridgen , 2022 MSPB 3 1, ¶¶ 40-42 (explaining that, when
disability discrimination is a motivating fact or, injunctive or other
forward -looking relief is available and, to obtain full relief, an appellant must
show that disability discrimination is a but -for cause of the personn el action) .
Aside from timing, there is no evidence to suggest that the deciding official
considered the appellant’s disability, rather than his unacceptable performance, as
a fact or when deciding to remove him. Because the appellant failed to prove his
disability was a motivating factor, he necessarily failed to prove that it was a
“but-for” cause of his removal. See Pridgen , 2022 MSPB 31 , ¶ 42. Accordingly ,
we affirm the administrative judge’s finding that the appellant failed to prove his
disparate treatment disability discrimination defense. ID at 37 -42.
¶13 Notwithstanding, we must remand this appeal in light of recent case l aw to
make findings as to the appellant’s performance prior to the implementation of
the PIP. When the initial decision was issued, the Board’s case law stated that, in
4 As a Federal employee, the appellant’s claim of disability discrimination arises under
the Rehabilitation Act of 1973, which incorporates the standards under the Americans
with Disabilities Act, as amended. See Pridgen , 2022 MSPB 31 , ¶ 35.
9
an appeal of a performance -based removal under chapter 43, the agency was
required to prove the following by substantial evidence: (1) OPM approved its
performance appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
his position; (3) his perfo rmance standa rds were valid under 5 U.S.C.
§ 4302 (c)(1); (4) the agency warned him of the inadequacies of his performance
during the appraisal period and gave him an adequate opportunity to demonst rate
acceptable performance; and (5) after an adequate improvement period, his
performance remained unacceptable in at least one critical element. Lee v.
Department of Veterans Affairs , 2022 MSPB 11 , ¶ 13. The administrative judge
analyzed each of these elements in turn and found that the agency met its burden
by substantial evidence. ID at 5 -18. We agree with those findings. Howeve r,
while this case was pending on review , the Federal Circuit recognized for the first
time that an agency must prove an additional element to support an adverse action
under chapter 43. Santos , 990 F.3d at 1360 -61. Specifically, the agency “must
justify institution of a PIP” by proving the employee’s performance was
unacceptable before the PIP. Id.; Lee, 2022 MSPB 11 , ¶ 14. The holding applies
to all pending cases, regardless of when the events took place. Lee, 2022 MSPB
11, ¶ 16.
¶14 Although the record contains some evidence as to the appellant’s pre -PIP
performance , the parties were no t on notice as to this element and, a ccordingly,
we must remand the appeal to give the parties the opportunity to present
additional evidence as to whether the appe llant’s performance was unacceptable
in one or more critical elements prior to the issuance of the PIP. Id., ¶¶ 15 -17.
On remand, the administrative judge shall accept argument and evidence on this
issue, and shall hold a supplemental hearing, if appropr iate. The administrative
judge shall then issue a new decision consistent with Santos. See id. If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate the prior findings on the other elements of
10
the agency’s case and the appellant’s affirmative defenses in the remand initial
decision. See id. However, regardless of whether the agency meets its burden, if
the argument or evidence on remand regarding the appellant’s pre -PIP
performance affects the administrative judge’s analysis of the appellant’s
affirmative defenses, the administrative judge should address such argument or
evidence in the remand initial decision. See Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision must
identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests).
ORDER
¶15 For the reasons discussed above, we remand this case to the regional office
for further adjudication in acco rdance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CARTER_MARK_R_CH_0432_16_0400_I_1_REMAND_ORDER_2022106.pdf | 2023-04-17 | null | CH-0432 | NP |
3,267 | https://www.mspb.gov/decisions/nonprecedential/MAKOSKY_JEFFREY_SF_0752_17_0132_I_1_FINAL_ORDER_2022142.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY MAKOSKY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -17-0132 -I-1
DATE: April 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey Makosky , San Ysidro, California, pro se.
Donna M. Butler , San Diego, 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 for lack of jurisdiction the appeal of his termination . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact ; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected 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 (b).
BACKGROUND
¶2 Following several months of service in a temporary Postal Support
Employee Laborer Custodian position, the appellant was converted on
September 3, 2016, to the same po sition, but as a career, full -time employee.
Initial Appeal File (IAF), Tab 4 at 28 . He was advised that his appointment was
subject to a 90-day probationary period. Id. On November 30, 2016, the agency
informed the appellant that h is employment would permanently end , effective
November 28, 2016,2 due to his failure to meet the agency’s Standards of
Conduct. Id. at 12.
¶3 On appeal to the Board , the appellant challenged the action , arguing that his
performance was satisfactory, that h e had not received ti mely evaluations, that he
2 The memorandum indicated that the appellant would receive administrative leave for
the remainder of his scheduled tour, through November 30, 2016. IAF, Tab 4 at 12.
However, the P ostal Service Form 50 shows the effective date of the termina tion as
November 26, 2016. Id. at 14. For the reasons set forth in this decision, n one of these
inconsistences has any bearing on the disposition of this appeal. Vena v. Department of
Labor , 111 M.S.P.R. 165 , ¶ 9 (2009).
3
was denied union representation , and that he was “let go” just 6 days before the
end of his probationary period . IAF, Tab 1 at 5. He also stated that he was a
preference eligible, id. at 1-5, and that he had 7 years of Governmen t service , id.
at 1. He requested a hearing . Id. at 2.
¶4 The administrative judge issued an order explaining the ways in which the
appellant could establish the Board ’s jurisdiction over his appeal; specifically , by
nonfrivolously alleging that, at the time of his termination, he was serving under
a Veterans Readjustment Appointment (VRA), that he had completed 1 year of
current, continuous service in the same or similar positions, or that he satisfied
the require ments for an appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) . IAF, Tab 3. The administrative
judge also advised the appellant that his submission on jurisdiction must be
received by December 21, 2016, that the record on jurisdiction would close on
December 30, 2016, and that , if he made nonfrivolous allegations of jurisdiction ,
he would be entitled to a hearing. Id. The agency urged that the appeal be
dismissed for lack of jurisdiction. IAF, Tab 4.
¶5 The appel lant made numerous submissions, some before the close of the
record, IAF, Tabs 5 -7, and most after the close of the record, IAF, Tabs 8, 10 -15,
18-22, but none addressed the issue of the Board’s jurisdiction over his appeal.
¶6 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 23, Initial Decision (ID)
at 1, 13. He found that the Board lacks jurisdiction over the appeal as a removal
under 5 U.S.C. chapter 75, ID at 5 -8, as a p robationary termination under
5 C.F.R. part 315, subpart H, ID at 8 -10, or as a USERRA appeal, ID at 10 -12.
¶7 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 1.3
3 The appellant timely filed a pleading which the Office of the Clerk of the Board
construed as a request for an extensi on of time in which to file a supplement in support
4
ANALYSIS
¶8 On review, the appellant state s only that he is seeking an attorney to sue the
agency under a variety of legal theories and that he w ill seek reimbursement of
fees when he file s charges against all parties “who lied in the statements ” they
provided. PFR Fil e, Tab 1 at 3.
¶9 Initially, to the extent the appellant suggests that he was hampered in
presenting his appeal before the Board because he appeared without
representation, it is well settled that an appellant has the burden of obtaining
representation because the Board’s r egulations do not provide for appointing
counsel. Hackett v. U.S. Postal Service , 31 M.S.P.R. 597 , 599 -600 (1986);
5 C.F.R. § 1201.31 . The appellant was clearly apprised of his right to designate a
representative , and yet he did not do so. IAF, Tab 2 at 6 -7.
¶10 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). Although the administrative
judge car efully explained to the appellant the means by which he could establish
the Board’s jurisdiction over his appeal, and afford ed him the opportunity to
make nonfrivolous allegations in support of his claim, IAF, Tab 2, he failed to do
so.
¶11 The administrative judge properly found that the appellant did not
nonfrivolously allege that the Board has jurisdiction over his appeal under
5 U.S.C. chapter 75 because, while the record shows , and the administrative judge
of his petition for review, PFR File, Tab 3, and the Office of the Clerk of the Board
granted a limited extension until March 1, 2017 , PFR File, Tab 4. The appellant’s
subsequent January 2017 submissions were rejected and returned to him on the base s
that they did not constitute a single supplement to his petition for review , PFR File,
Tab 5, and his February 2017 submission was rejected and returned to him because the
appellant asked the Board to reject it so that he could file a single, perfected
supplement by March 1, 2017 , PFR File, Tab 6. However, the appellant made no
further submis sions. The agency did not respond to the appellant’s petition for review.
5
found, that the appellant is a preference eligible, IAF, Tab 4 at 14, 28, 86; ID
at 5-6, he failed to nonfrivolousl y allege, and the record does not otherwise
reflect, that he had 1 year of current, continuous service in the same or similar
position, as required by 5 U.S.C. § 7511 (a)(1)(B) , and, therefore, he is not an
“employee” with appeal rights to the Board under 5 U.S.C. chapter 75, Paige v.
U.S. Postal Service , 106 M.S.P.R. 299 , ¶ 11 (2007); ID at 5 -8. Specifically, the
administrative judge found that, despite the appellant’s claim that he had 7 years
of Government service, the record showed that, at the time he was terminated, he
had, at most, little more than 5 months of current continuous service in a
custodial position , IAF, Tab 4 at 28, 32 -70, and that, to the extent he ha s military
service, it cannot be tacked onto civilian service for the pur pose of meeting
current continuous requirements, Bell v. Department of Homeland Security ,
95 M.S.P.R. 580 , ¶¶ 15-18 (2004); ID at 5-8.
¶12 The administrative judge also properly found that the appellant did not
nonfrivolously allege that the Board has jurisdiction over his appeal under
5 C.F.R. p art 315, subpart H. ID at 8 -10. Pursuant to 38 U.S.C. § 4214 (b)(1)(E),
a VRA appointee who is terminated within 1 yea r, for post -appointment reasons,
has a limited right to appeal his termination to the Board if he raises a
nonfrivolous allegation that his termination was based on partisan political
reasons or marital status , or on pre -appointment reasons . Toomey v . U.S. Postal
Service , 71 M.S.P.R. 10 , 14 -15 (1996). As the administrative judge found,
however, the appellant did not allege , and the record does not reflect , that his
appointment to the agency was under the VRA program . IAF, Tabs 1, 4 at 28; ID
at 9.
¶13 Finally, the administrative judge properly found that the appellant failed to
nonfrivolously allege that the Board has jurisdiction over his appeal under
USERRA. ID at 10 -12. To establish Board jurisdiction over a USERRA claim
under 38 U.S.C. § 4311 (a), an appellant must allege that he is a member or
applied to be a member of, or performs or performed in , a unformed service, or
6
had an application or obligation to perform such service, and that his termination
was due to such membership, application f or membership, performance of
service, application for service, or obligation for such. Acknowledging that the
Board utilizes a liberal approach in determining jurisdiction under USERRA,
Beck v. Department of the Navy , 120 M.S.P.R. 504 , ¶ 8 (2014), the administrative
judge repeated his earlier finding that the appellant is a preference -eligible
veteran and that he therefore served in the uniformed service, but the
administrative judge found that the appellant failed to allege in any way , nor did
the record show, that his termination was due to his unformed service.4 IAF,
Tabs 1, 4 at 15 -16; ID at 11 -12.
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 The administrative judge noted the appella nt’s claim, in a submission provided after
his initial appeal, that he filed a complaint with the Department of Labor on
December 28, 2016. IAF, Tab 8. The administrative judge found, however, that the
appellant had not submitted a copy of any such compl aint, and that, even assu ming he
filed it when he alleged , it would have been after he had filed his Board appeal, and it
therefore would have no bearing on the Board’s jurisdiction over the appeal . 5 C.F.R.
§ 1208.11 (b); ID at 12 n.8.
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 op tion is most appropriate in any matter.
7
filing time limits and requirements. Failure to file within the 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.
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 an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, th en you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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:
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 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of a ppeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MAKOSKY_JEFFREY_SF_0752_17_0132_I_1_FINAL_ORDER_2022142.pdf | 2023-04-17 | null | SF-0752 | NP |
3,268 | https://www.mspb.gov/decisions/nonprecedential/ALFREDSON_TANYA_DC_1221_16_0206_W_1_REMAND_ORDER_2022334.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TANYA ALFREDSON,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
DC-1221 -16-0206 -W-1
DATE: April 17, 2023
THIS ORDER IS NONPRECEDENTIAL1
Chungsoo Lee , Feasterville, Pennsylvania, for the appellant.
Marianne Perciaccante , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed this individual right of action (IRA) appeal for lack of
jurisdiction . For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Between 2008 and 2015, the appellant held a series of term appointments
with the agency’s Foreign Service Institute (FSI) . E.g., Initial Appeal File (IAF),
Tab 13 at 5-10, 112, 138, 167. The majority of this time she held the position of
Foreign Affairs Officer, but the agency converted her to the position of
Supervisory Foreign Affairs Officer in December 2013, subject to a probationary
period. Id. at 138, 167. About a year later, the agency decided that the appellant
had not successfully completed her supervisory probationary period and,
therefore, returned her to her original position. Id. The appellant separated from
the agency effective May 2015 . Id. at 112.
¶3 In March 2012, whil e still employed with the agency, the appellant
contacted the agency’s Office of Inspector General (OIG) to express various
concerns. IAF, Tab 8 at 11-15. Then, in July 2013, the appellant filed a
complaint with the Office of Special Counsel (OSC), alleg ing that the agency was
retaliating against her for her engagement with OIG. Id. at 16 -18. She continued
to communicate with OSC about further allegations of reprisal in November 2014,
May 2015, and June 2015. Id. at 21-50. In her communications, she i ndicated
that her first -level supervisor was aware of, and was retaliating against the
appellant for, her OIG and OSC complaint s. Id. at 26 , 48.
¶4 After the appellant received OSC’s October 2015 notice that it was closing
its investigation, she filed the in stant appeal with the Board , raising various
allegations pertaining to her employment. IAF, Tab 1 at 4 -6. She then filed two
additional pleadings with further allegations of w rongdoing. IAF, Tabs 3 -4.
The administrative judge construed the allegations as an IRA appeal, provided the
corresponding jurisdictional standards, and ordered the appellant to meet her
jurisdictional burden. IAF, Tab 6.
¶5 After both parties responded to the jurisdictional order, IAF, Tabs 8 -9, 11,
the administrative judge dismissed the appeal for lack of jurisdiction, without
holding the requested hearing, IAF, Tab 18, Initial Decision (ID).
3
The administrative judge found that the appellant failed to nonfrivolously allege
that she made any disclosure protected under 5 U.S.C. § 2302 (b)(8) or that any
disclosure was a contributing factor in any alleged personnel action. ID at 9 -18.
The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency has filed a response. PFR File, Tab 3.
The appellant failed to prove or nonfrivolously alle ge that she was subjected to
an otherwise appealable action.
¶6 Again, the administrative judge construed th e appellant’s allegations as
an IRA appea l. IAF, Tab 6. However, after the administrative judge explained
the corresponding jurisdictional burden over an IRA appeal, the appellant
responded in part by asserting that she had additional allegations of “‘otherwise
appealable’ actions or non IRA wh istleblower retaliation claims.” IAF, Tab 8
at 4, Tab 9 at 3. In doing so, the appellant included the following:
a. Since 2012 to May 2015 Appellant was denied the higher grade
wages (including multiple [quality step increases] ) for the higher
level wo rk she performed as Deputy Director/Foreign Affairs
Officer, Political Training Division, Foreign Service Institute,
Department of State, in retaliation for her disclosure activities.
b. On March 22, 2015 Appellant was denied her Within Grade
Increase (WG I).
c. On November 30, 2014 Appellant was demoted from Supervisory
Foreign Affairs Officer to Foreign Affairs Officer.
IAF, Tab 8 at 4 (internal citations omitted) . The appellant suggested that she
would present arguments and facts concerning those matt ers at a later date,
because the administrative judge thus far only had requested that she meet her
IRA jurisdictional burden. Id. To the extent that the appellant intended to
identify an otherwise appealable action, se parate from her IRA appeal,
the administrative judge failed to address these allegations.
¶7 In the interest of further developing the record, the Office of the Clerk of
the Board issued a show cause order, instructing the appellant to present
argument and evidence to explain why the aforeme ntioned matters are otherwise
4
appealable actions within the Board’s jurisdiction, outside the context of her IRA
appeal. PFR File, Tab 4. The appellant failed to respond. For the reasons
described below, we find that the appellant has failed to prove or even
nonfrivolously allege that the Board has jurisdiction over an otherwise appealable
action . See 5 C.F.R. § 1201.56 (b)(2)(i)(A) (recognizing that, with ex ceptions not
pertinent here, an appellant must prove jurisdiction by preponderant evidence);
see also Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 14 (2013)
(recognizing that an appellant is entitled to a jurisdictional hearing if she presents
nonfrivolous allegations of Board jurisdiction).
¶8 Under chapter 75, the Board generally has jurisdiction to review an appeal
from a removal, a suspension of more than 14 days, a reduction in grade or pay,
or a furlough of 30 days or less. 5 U.S.C. §§ 7512 (1)-(5), 7513(d), 7701(a) .
Chapter 75 does not, however, provide for Board jurisdiction over the denial of a
performance -related award. See 5 U.S.C. § 7512 (1)-(5); see also , e.g., Clark v.
Department of the Air Force , 111 M.S.P.R. 477 , ¶ 9 (2009) (recognizing that the
Board generally lacks jurisdiction over an appeal of a denial of a
performance -related award, such as a quality step increase (QSI) ); Riojas v. U.S.
Posta l Service , 88 M.S.P.R. 230 , ¶ 7 (2001) (recognizing that a bonus or premium
pay is not part of basic pay and the loss of or reducti on in such pay is not
appealable to the Board as a reduction in pay). Accordingly, while the first of the
aforementioned allegations asserts that the appellant was denied higher wages,
including a QSI, we find that she has failed to prove or nonfrivolousl y allege that
this was an adverse action appealable under chapter 75.
¶9 The second allegation, concerning the alleged denial of a WGI , also fails.
With exceptions not pertinent here, the Boar d only has jurisdiction over
an employee’s appeal from the agenc y’s withholding of a within -grade increase if
the employee sought reconsideration of the agency’s decision to withhold the
increase and the agency affirmed its initial decision on reconsideration. 5 U.S.C.
§ 5335 (c); Goines v. Merit Systems Protection Board , 258 F.3d 1289 , 1292 (Fed.
5
Cir. 2001). The appellant’s bare assertion that she wa s denied a WGI , without
any additional information in support of that claim, does not prove or
nonfrivolously allege that the purported denial of the WGI falls within the
Board’s limited jurisdiction over such matters.
¶10 The third allegation, concerning a pu rported demotion, similarly fails. For
a reassignment to fall within the Board’s adverse action jurisdiction under
chapter 75, it must result in a reduction in grade or a reduction in pay. Wilson v.
Merit Systems Protection Board , 807 F.2d 1577 , 1580 (1986) (recognizing that
“[a] reduction in responsibility without a concurrent reduction in grade or pay . . .
is not appealab le to the Board”); Loggins v. U.S. Postal Service ,
112 M.S.P.R. 471, ¶ 10 (2009) ( reaching the same conclusion ). Despite the
appellant’s assertion that she was demoted from Supervisory Foreign Affairs
Officer to Foreign Affairs Officer, the evidence she provided demonstrates that
her grade and salary remained the same. IAF, Tab 3 at 10. Therefore, we find
that the appellant has f ailed to prove or nonfrivolously allege that this change in
position was an appealable adverse action.
The appellant failed to present nonfrivolous allegations that she made protected
disclosures.
¶11 We now turn to the issue of whether the Board has jurisdic tion over the
appellant’s allegations as an IRA appeal. Under the Whistleblower Protection
Enhancement Act of 2012 (WPEA), the Board has jurisdiction over an IRA appeal
if the appellant has exhausted her administrative remedies before OSC and makes
nonfri volous allegations that (1) she made a protected disclosure described under
5 U.S.C. § 2302 (b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take , or
threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302 (a). Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016);
see 5 C.F.R. § 1201.4 (s) (defining a nonfrivolous allegation as an assertion that,
6
if proven, could establish the matter at issue). The administrative judge found
that the appell ant did not meet this burden. ID at 9-18.
¶12 Among other things, the administrative judge found that the appellant failed
to present nonfrivolous allegations that any of the disclosures she identified were
protected. Compare IAF, Tab 8 at 7 -8, with ID at 9-16. For example, the
administrative judge noted that while the appellant alleged that she disclosed
“inappropriate [Human Resources] activities,” she failed to explain who engaged
in those activities, what the activities were, or w hy they were inappropr iate.
ID at 10; see Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014)
(recognizing that a disclosure must be specifi c and detailed, not a vague
allegation of wrongdoing).2
¶13 On review, the appellant reasserts her allegation of whistleblower
retaliation, generally. PFR File, Tab 1 at 4 -5. However, while her petition does
contain some details about the alleged retaliatory personnel actions, it does not
contain any substantive argument or evidence concerning the nature of her
alleged disclosures. See id . Having reviewed this and her pleadings below ,
we agree with the administrative judge’s conclusion that the appellant did not
2 During the time that followed the initial decision, the U.S. Court of Appeals for the
Federal Circuit explained that “the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed to a personnel action
must be determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit
System s Protection Board , 979 F.3d 1362 , 1369 (Fed. Cir. 2020). Therefore, “[t]he
Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence
as to whether the alleged disclosures fell within the protected categories or whether the
disclosures were a contributing factor to an adverse personnel action.” Id.
We recognize that the administrative judge referred to the agency’s arguments
regarding the question of whether the appellant presented nonfrivolous allegations of a
protected disclosure. ID at 10, 13 -16 (citing IAF , Tabs 11, 13). But his doing so
appears to be permissible, even under Hessami . The administrative judge merely
referred to the agency’s arguments to note that the appellant failed to provide the level
of specificity required regarding her alleged disclo sures even after having the
opportunity to respond to the agency’s arguments about the same. Id.
7
present nonfrivolous allegations that she made a d isclosure protected by section
2302(b)(8).
The appellant nevertheless met her jurisdictional burden regarding at least some
of her other claims.
¶14 Although the appellant failed to present nonfrivolous allegations of a
disclosure protected by section 2302(b )(8), that does not end our analysis.
As mentioned above, an appellant may establish jurisdiction in an IRA appeal
regarding a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
protect ed activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
The administrative judge recognized this additional basis of jurisdiction in the
jurisdictional order but did not conside r whet her the appellant’s
allegations implicated such protected activity in the initial decision. Compare
IAF, Tab 6 at 3, with ID at 6-7. For the reasons that follow, we find that the
appellant met her jurisdictional burden for some of her claims pertai ning to
reprisal for engaging in protected activity , and the administrative judge must
make new jurisdictional findings regarding some other s.
The appellant nonfrivolously alleged that she engaged in protected activity.
¶15 In addition to the alleged disclosur es address ed above, the appellant
alleged below that she made disclosures to the agency’s OIG on March 30 and
July 11, 2012. IAF, Tab 8 at 7 -8. In addition, she presented six “Claims of
Whistleblower Retaliation,” which seem to indicate that the appellan t filed claims
with or otherwise discussed additional allegations of wrongdoing with the OIG
and OSC from July 2013 to June 2015 . Id. at 8-9. The administrative judge erred
by narrowly construing the appellant’s alleged March and July 2012 disclosures
as potentially protected under only 5 U.S.C. § 2302 (b)(8) , ID at 10 -16, and by
failing to address her July 2013 to June 2015 OIG and OSC disclosu res. Both
sets of allegations implicated activity protected under 5 U.S.C. § 2302 (b)(9) .
¶16 Protected activity under section 2302(b)(9)(A)(i) includes “the exercise of
any appeal, complaint, or griev ance right granted by any law, rule, or
8
regulation . . . with regard to remedying a violation of [section 2302(b)(8)].”
5 U.S.C. § 2302 (b)(9)(A)(i); Bishop v. Department of Agriculture , 2022 MSPB
28, ¶ 15. Protected activity under section 2302(b)(9)(C) includes “cooperating
with or disclosing information to the Inspecto r General . . . of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” 5 U.S.C.
§ 2302 (b)(9)(C); see S alerno , 123 M.S.P.R. 230 , ¶ 12. This latter provision
covers an employee’s disclosures to OIG or OSC, even if the disclosure is not
protected under section 2302(b)(8). Pridgen v. Office of M anagement and
Budget , 2022 MSPB 31 , ¶ 62 .
¶17 Though not recognized by the administrative judge below, we find that the
appellant presented nonfrivolous allegations , and even supportive evidence,
that she engaged in activity protecte d by section 2302(b)(9)(A)(i) in
her communications with OSC and that she e ngaged in activity protected
by 2302(b)(9) (C) in her communications with the a gency’s OIG . The
appellant included evidence of her contact with OIG, beginning in March 2012,
IAF, Tab 8 at 11 -15, as well as her various correspondence with OSC, which
began with her July 2013 complaint of repris al and ended with OSC’s
October 2015 closeout letter, id. at 16 -54. Therefore, we conclude that the
appellant met this element of her burden of nonfrivolously alleging that
she engaged in protected activity .
The appellant nonfrivolously alleged that her protected activity was a
contrib uting factor in at least some of the alleged personnel actions
against her .
¶18 Having found that the appellant nonfrivolously alleged that she engaged in
activity protected by sections 2302(b)(9)(A)(i) and (C), we next decide whether
the appellant nonfrivolou sly alleged that this activity was a contributing factor in
the matters she describes as retaliatory .
¶19 To satisfy the contributing factor criterion at the jurisdictional stage of
an IRA appeal, the appellant only need raise a nonfrivolous allegation that th e
9
fact of, or the content of, the protected disclosure or activity was one factor that
tended to affect the personnel action in any way. See Salerno , 123 M.S.P.R. 230 ,
¶ 13 ( so stating in the context of alleged protected disclosu res). One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the disclosure or activity wa s a contributing factor
in a personnel action through circumstantial evidence, such as evidence that the
official who took the personnel action knew of the disclosure and that the
personnel action occurred within a period of time such that a reasonable per son
could conclude that the disclosure was a contributing factor in the personnel
action. Id. A personnel action taken within 1 to 2 years of an appellant’s activity
satisfies the timing prong of this test. See id ., ¶ 14.
¶20 Throughout, the appellant has been represented, yet her allegations have
been lengthy, convoluted, and difficult to foll ow. PFR File, Tab 1 at 5;
IAF, Tab 1 at 3, 6, Tab 3 at 4-9, Tab 4 at 4 -5. In any event, we have interpreted
her pleadings in favor of finding jurisdiction over this IRA appeal. See Skarada
v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 6 (stating that any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction). Therefore, we
have considered the 24 alleged retaliatory personnel actions (actions 1-24) that
the appel lant identified below in response to the administrative judge’s
jurisdictional order .3 IAF, Tab 8.
¶21 We have located instances of the appellant asserting that her direct
supervisor from July 2013 to May 2015, identified here as Supervisor A,
frequently as ked the appellant about her OIG and OSC filings, seeking specific
details about the same, beginning just after she took over th e position supervising
the appellant. IAF, Tab 3 at 5 , Tab 8 at 26 , 48. This allegation suggests that
Supervisor A had knowledg e of at least some of the appellant’s protected activity.
3 As we discuss the appellant’s numbered list of alleged retaliatory personnel actions,
1-24, we are using her numbering for purposes of clarity and ease of r eference.
10
Turning back to the appellant’s list of 24 alleged personnel actions, some directly
implicate this individual during the relevant pe riod. IAF, Tab 8 at 5 -7.
This includes the appellant’s allegati on that Supervisor A denied her a QSI in
January 2014 (action 6), “interfered with course date selections for [the]
appellant” in February and March 2014 (action 8), left the appellant off emails
she had historically been copied on throughout 2013 and 2014 while also scolding
the appellant for directly emailing leadershi p (action 9), did not include the
appellant in scheduled meetings throughout 2014 (action 10), assigned the
appellant a task in July 2014 that others could have done and then criticiz ed the
appellant about the same (action 13), “disciplined” the appellant in an email for
not being available to talk after work hours in August 2014 (action 16),
and “failed ” the appellant during her supervisory probationary period in
September 2014, which led to her losing her supervisory role (actions 17-19).
Id. at 5 -7. Ou tside of her list of alleged personnel actions, the appellant’s
pleadings also blamed Supervisor A for “ongoing harassment, erosion of duties,
undermining of her supervisory role, denial of higher wages for higher level
work, [and] a negative mid -year perf ormance review issued on Aug[ust] 1, 2014”
(action 25).4 Id. at 8. Each of these alleged actions occurred within the 1 to
2 years in which the Board has found the knowledge/timing test satisfied.
See supra ¶ 18.
¶22 Pieced together, we find that the appella nt’s assertion that Supervisor A
probed the appellant about her OIG and OSC filings, IAF, Tab 3 at 5, Tab 8
at 26, 48, along with her allegations of retaliation that specifically name this
4 This allegation is not included in the appellant’s list of 24 alleged personnel actions.
It is a separate allegation within the same pleading. For the sake of clarity, we are
nevertheless labeling it “action 25.”
We recognize that action 25 may very well encompass some of the more specific
allegations within the appellant’s list of 24 alleged retaliatory actions. But it remains
relevant to distinguish action 25, since it specifically named Supervisor A as the
responsible party, while many w ithin the appellant’s list of 24 did not specifically
identify Supervisor A or any particular official.
11
supervisor as involved in the period that followed, IAF, Tab 8 at 5 -8, constitute
nonfrivolous allegations that her protected activity was a contributing factor in
these alleged personnel actions under the knowledge/timing test.
¶23 Piecing together different portions of the appellant’s filings, she has also
alleged that her OIG complaint led to OIG forcing two agency officials, the FSI
Executive Office Director and the Director of Human Resources , to recategorize
the appellant’s position as supervisory, and these same officials then
unsuccessfully attempted to downgrade her p osition, in April 2013 (action 4).
IAF, Tab 3 at 4 -5, Tab 8 at 50.5 For purposes of the nonfrivolous allegation
standard, we are interpreting the appellant’s assertion that her complaint led to
OIG forcing these officials to act as further indicating tha t these officials knew
that the appellant had complained to OIG . See Skarada , 2022 MSPB 17 , ¶ 6.
Therefore, th is, too, constitutes nonfrivolous allegations that her protected
activity was a contributing factor under the knowledge/timing test .
The appellant nonfrivolously alleged that at least some of the alleged
personnel actions are covered under the statute.
¶24 Having found that the appellant presented no nfrivolous allegations that
she engaged in protected activity that was a contributing factor in at least some
matters (actions 4, 6, 8 -10, 13, 16 -19, 25), we must now decide whether the
appellant nonfrivolously alleged that these matters constitute covered personnel
actions.
5 The appellant specifically named these same officials in one other alleged retaliatory
personnel action, an attempted termination of the appellant’s employment (action 1).
IAF, Tab 8 at 5. However, the appellant described this as occurring in 2009, which
predates the appellant’s OIG and OSC activity. For that reason, the appellant’s
protected activity could not have been a contributing factor in tha t alleged personnel
action. Davis v. Department of Defense , 106 M.S.P.R. 560 , ¶ 12 (2007) (stating that
because the complained -of personnel action predated the protected disclosure, there was
no way the disclosure could have contribute d to the personnel action), aff’d per curiam ,
278 F. App ’x 1009 (Fed. Cir. 2008).
12
¶25 The whistleblower statute specifically lists the types of covered personnel
actions as including (i) appointments; (ii) promotions; (iii) actions under 5 U.S.C.
chapter 75 or other disciplinary or corre ctive actions; (iv) details, transfers, or
reassignments; (v) reinstatements; (vi) restorations; (vii) reemployments;
(viii) performance evaluations under 5 U.S.C. chapter 43 or under Title 38;
(ix) decisions regarding pay, benefits, or awards, or involvin g education or
training if it reasonably may be expected to lead to an appointment, promotion,
performance evaluation, or other action described in 5 U.S.C. § 2302 (a)(2)(A);
(x) decisions to order psychiatric testing or examination; (xi) implementations or
enforcements of any nondisclosure policy, form, or agreement; and (xii) any other
significant changes in duties, responsibilities, or working conditions. 5 U.S.C.
§ 2302 (a)(2)(A); Spivey v. Department of Justice , 2022 MSPB 24 , ¶ 6. The Board
recently acknowledged that the last of these should be interpreted broadly but that
to constitute a “significant change in duties, responsibilities, or working
conditions,” the agency action must have practical consequences for the
employee. Skarada , 2022 MSPB 17 , ¶ 15. To amount to a “significant change”
under section 2302(a)(2)(A)(xii), an agency action must have a sign ificant impact
on the overall nature or quality of an employee ’s working conditions,
responsibilities, or duties. Id. The Board will consider alleged agency actions
both collectively and individually in this context. Id., ¶ 16.
¶26 Once again, the appella nt’s pleadings are difficult to follow, and many of
her allegations are conclusory. Nevertheless, we find that she present ed
nonfrivolous allegations of retaliatory covered personnel actions by alleging that
the FSI Executive Office Director and the Direc tor of Human Resources
unsuccessfully attempted to downgrade her position in April 2013 (action 4).
Supra ¶ 22; IAF, Tab 3 at 4 -5, Tab 8 at 50. She also presented nonfrivolous
allegations of retaliatory covered personnel actions by alleging that Supervis or A
denied her a QSI in January 2014 (action 6) and failed the appellant as to her
probationary period in September 2014, which led to the recommendation that she
13
not be retained in her supervisory position and the subsequent return to her
former position (actions 17 -19). Supra ¶ 21; IAF, Tab 8 at 6-7. The attempt to
downgrade her position and the denial of a QSI (actions 4 and 6) constituted
decisions or threatened decisions concerning pay and/or benefits . 5 U.S.C.
§ 2302 (a)(2)(A)(ix). Likewise, a ctions 17 -19, taken together, amounted to a
reassignment . 5 U.S.C. § 2302 (a)(2)(A)(iv). Accordin gly, we find that the
appe llant has made nonfrivolous all egations that the se actions fall within the
statutory definition of personnel actions.6
¶27 For the other matters that the appellant has specifically attributed to
Supervisor A (actions 8 -10, 13, 16, a nd 25), the appellant has provided little
explanation about their significance. IAF, Tab 8 at 5 -8. Collectively, though, we
find that they suffice for purposes of a nonfrivolous allegation of a significant
change in duties, responsibilities, or working c onditions. See Skarada ,
2022 MSPB 17 , ¶¶ 17-18 (finding that allegations than an employee was directed
to stop attending leadership meetings and performing extra duties, and excluded
from the hiring process of new employees was a nonfrivolous allegation of a
significant change in duties or responsibilities, as well as concluding that
additional instances of alleged mistreatm ent, when considered cumulatively,
constitute d a nonfrivolous allegation of a significant change in working
conditions ).
The appellant met the exhaustion requirement for the above claims .
¶28 We have found that the appellant presented nonfrivolous allegations that
she engaged in activity protected under the WPEA and that this activity was a
contributing factor in at least some covered personnel actions. Therefore, we turn
to whether the appell ant proved that she exhausted these allegations with OSC.
6 It is arguable that actions 4, 6, and 17 -19 also fall within the def initions of other
personnel actions in 5 U.S.C. § 2302 (a)(2)(A) , but because we find that these actions
are all decisions , or threatened decisions, that concern pay and/or ben efits we need not
determine whether any other subsections in section 2302(a)(2)(A) are applicable.
14
¶29 An appellant may demonstrate exhaustion through her initial OSC
complaint or correspondence with OSC. Chambers v. Department of Homeland
Security , 2022 MSPB 8 , ¶ 11. She need only show that she advised OSC of the
“core of [her] retaliation claim,” thus giving “OS C sufficient basis to pursue
an investigation.” Briley v. Natio nal Archives and Records Administration ,
236 F.3d 1373 , 1377 -78 (Fed. Cir. 2001) ; see Chambers , 2022 MSPB 8 , ¶ 10
(explaining that an appellant may give a more detailed account of his
whistleblowing activities before the Board than he did to OSC (citing Briley ,
236 F.3d at 1 378)).
¶30 For the exhaustion element of the appellant’s burden, we have reviewed all
the correspondence between her and OSC. IAF, Tab 8 at 16 -54. This
correspondence includes her repeated invocation of her OIG and OSC complaints
as the bases for the agenc y retaliating in various ways. Id. at 17 -18, 22, 24 -27,
30, 33, 36 -38, 40 -42, 48 -50. Among them are the appellant’s allegations that the
agency retaliated by unsuccessfully attempting to downgrade her position in
April 2013 (action 4), id. at 17 -18, 24, 50, denying the QSI in January 2014
(action 6), id. at 23 -24, 29, 53, failing the appellant as to her probationary period
in or around September 2014, which led to her reassignment to a nonsupervisory
role (actions 17 -19), id. at 38, 49, 52 -53, and harass ing the appellant in ways that
are generally consistent with the appellant’s allegations in this appeal about
harassment or other conspicuous changes to her role (actions 8 -10, 13, 16, and
25), id. at 21 -22, 25, 27 -28. We therefore find that the appellant proved
exhaustion .
On remand, the administrative judge should make new jurisdictional findings
regarding the other personnel actions the appellant alleged.
¶31 In the passages above, we found that the appellant met her jurisdictional
burden for several of the numerous alleged personnel actions she listed below , but
many more remain. For those that remain, the appellant ’s list did not provide a
detailed or specific explanation regarding the contributing factor criterion.
15
Instead, she summarily stated that the agency denied her a QSI in February 2013
(action 2), denied a 5 -year contract in February 2013 (action 3), placed her under
a supervisory probationary period in December 2013 (action 5), asked her to
make up for absent employees (action 7), denied her another QSI in April 2014
(action 11), admonished her for failing to provide advanced notice of sick leave
in July 2014 (action 12), assigned her to run a class with inadequate notice
(action 14), scolded her for not carrying out an order (action 15), rate d her “not
successful” for the 2014 rating period (action 20), denied her a WGI
(actions 21-23), and denied her higher wages throughout 2012 -2015 (action 24).
Id. at 5-7.
¶32 Absent from these are, inter alia, any specific identification of wh o was
involved in these matters and whether they had knowledge of the appellant’s
protected activity for purposes of satisfying the contributing factor element under
the knowledge/timing test. However, in addition to the knowledge/timing test,
the Board will also consi der other evidence, such as evidence pertaining to the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether these individuals ha d a desire or motive to retaliate against
the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶¶ 15 -16
(2012).
¶33 On remand, the administrative judge should seek clarification from the
parties regarding these additional alleged personnel actions to determine if the
appellant has nonfrivolously alleged that her protected activity was a contributing
factor under the know ledge/timing test or Dorney . To the extent necessary, the
administrative judge must also determine whether the appellant met the rest of her
jurisdictional burden for these claims.
16
On remand, the administrative judge must adjudicate those claims that fall within
the Board’s jurisdiction.
¶34 In conclusion, the appellant has failed to establish jurisdiction over the
agency’s various alleged wrongdoings as an otherwise appealable action. The
appellant also failed to nonfrivolously allege that she made any prote cted
disclosures. But the appellant did present nonfrivolous allegations that she
engaged in protected activity and that this protected activity was a contributing
factor in at least some personnel actions covered under whistleblower reprisal
statute s—the attempted downgrade of her position in April 2013 (action 4), the
denial of a QSI in January 2014 (action 6), the failing of the appellant as to her
supervisory probationary period, which led to her reassignment (actions 17 -19),
and the appellant’s claim of a significant change in duties, responsibilities, or
working conditions at the hands of those with knowledge of her protected activity
(actions 8 -10, 13, 16, and 25 ). The appellant met the exhaustion requirement for
the same.
¶35 In cases involving multipl e alleged disclosures or activities and multiple
alleged personnel actions, when an appellant makes a nonfrivolous allegation that
at least one alleged personnel action was taken in reprisal for at least one alleged
protected disclosure or activity, she es tablishes Board jurisdiction over her IRA
appeal. See P eterson v. Department of Veterans Affairs , 116 M.S.P.R. 113 , ¶ 8
(2011). We therefore find that the appellant established jurisdiction.
Specifically, the appellant established jurisdicti on over actions 4, 6, 17 -19, and,
when considered together, actions 8-10, 13, 16, and 25 . The administrative judge
must adjudicate those cl aims on the merits. For actions 2 -3, 5, 7, 11 -12, 14 -15,
and 20 -24, the administrative judge must make new jurisdictional findings to
decide whether those claims will also be adjudicated on the merits . See Thurman
v. U.S. Postal Service , 2022 MBPB 21 , ¶ 22 (recognizing the concept that the
Board’ s administrative judges are in the best position to, among other things,
develop the rec ord and simplify the issues ).
17
ORDER
¶36 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 | ALFREDSON_TANYA_DC_1221_16_0206_W_1_REMAND_ORDER_2022334.pdf | 2023-04-17 | null | DC-1221 | NP |
3,269 | https://www.mspb.gov/decisions/nonprecedential/PLATT_DAVID_B_AT_1221_14_0790_W_2_FINAL_ORDER_REDACTED_2027257.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID B. PLATT,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-1221 -14-0790 -W-2
DATE: April 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mick G. Harrison , Esquire, Bloomington, Indiana, for the appellant.
Jeffrey J. Velasco , Esquire, San Francisco, California , for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Lea vitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action appeal.
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 an y future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R . § 1201.117 (c).
2 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
Generally, we grant petitions such as this one only when: the init ial 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 eit her
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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
express ly MODIFIED by this Final Order, which supplements the initial
decision’s finding that the agency proved by clear and convincing evidence that it
would have taken the same act ion in the absence of the appellant’s protected
disclosure , we AFFIRM the initial decision.
¶2 The appellant is a Transportation Security Specialist – Explosives (TSSE)
with the agency’s Transportation Security Agency (TSA) at the Orlando
International Airport (MCO), Florida. Platt v. Department of Homeland Security ,
AT-1221 -14-0790 -W-1, Initial Appe al File (IAF), Tab 1 at 1, 7; Platt v.
Department of Homeland Security , AT -1221 -14-0790 -W-2, Appeal File
(W-2 AF), Tab 15 at 7, Tab 17 at 5. He filed this appeal asserting that the
agency, in reprisal for his whistleblowing , failed to provide him with a mid-year
performance rating in April 2014,3 suspended him for 7 days in 2013 for
inappropriate and disruptive be havior, and suspended him for 7 days in 2014 for
3 The appellant does not challenge the administrative judge’s findings regarding this
personnel action. Accordingly, we will not address this personnel action further. See
5 C.F.R. § 1201. 115 (the Board normally will consider only issues raised in a timely
filed petitio n for review or cross petition for review ).
3
causing an unprovoked confrontation with a coworker and failing to report
violations of TSA policy. W-2 AF, Tab 18 at 3-4. The appellant asserted that
these actions were based on his disclosure to the Department of Homeland
Security’s Office of Inspector General on December 21, 2011, that his
second -level supervisor, an Assistant Federal Security Director – Screening
(AFSD -S), allowed a Department of Defense (DOD) contractor to transport an
inert Improvised Explosive Device (IED ) in the cargo hold of a passenger aircraft
on January 6, 2009. W-2 AF, Tab 11, Exhibit (Ex.) 27 at 2-3, Tab 18 at 3.
¶3 After a hearing, the administrative judge denied the appellant’s request for
corrective action. W-2 AF, Tab 27, Initial Decision (ID) at 3, 14 . The
administrative judge found that the appellant exhausted his remedy with the
Office of Special Counsel and proved by preponderant evidence that he made a
protected disclosure . ID at 3-4. Nevertheless, the administrative judge found that
the appellant did not prove that his disclosure was a contributing factor in the
agency’s failure to provide a mid -year performance rating in April 2014 and
decision to suspend him for 7 days in 2014 because those personnel actions
occurred more than 2 1/2 years after the disclosure and were too remote in time
for a reasonable person to conclude that the disclosure was a contri buting factor
in the personnel actions . ID at 5-6. The administrative judge further found that
there was no other basis for finding that the disclosure was a contributing factor
in th ose personnel actions because the AFSD -S identified in the disclosure , who
was involved in the personnel actions, did not have any animus regarding the
disclosure . ID at 7. In this regard, the administrative judge noted that the Acting
Federal Security Director , who was the supervisor of the AFSD -S, made the
authorized decision to allow the contractor to bring the inert IED onto the
aircraft, the AFSD -S’s reputation and professional standing were not affected by
the disclosure because there was no basis for finding any wrongdoing or reason
for him to be concerned about t he disclosure, and the personnel actions occurred
4 years and 9 months after the events underlying the disclosure . Id.
4
¶4 The administrative judge also found that the appellant proved that his
disclosure was a contributing factor in the agency’s 7 -day susp ension in 2013
because the suspension occurred within a period of time such that a reasonable
person could conclude that the disclosure was a contributing factor in that
personnel action . ID at 8. Nevertheless, the administrative judge found that the
agency proved by clear and convincing evidence that it would have suspended the
appellant for 7 days in 2013 absent his disclosure. ID at 8, 13 . The
administrative judge held that the record clearly supported the reasons for the
suspension, i.e., the appellant’s attempt to intimidate his coworkers into not
volunteering to serve as a point of contact , or lead explosives specialist, under
threat of litigation, and disparaging remarks he made about his s upervisors . ID
at 9-13. He further found that there was no reason for the AFSD -S, who was the
proposing official, to have any animus against the appellant for his protected
disclosure because the AFSD -S had no responsibility for the decision made by the
Acting Federal Security Director to allow the DOD instructor to bring an inert
IED needed for military training onto a commercial airline. ID at 13.
¶5 The appellant asserts on review that , contrary to the administrative judge ’s
finding that the Acting Fed eral Security Director made the decision to approve
the placement of the inert IED on the airplane , the AFSD -S actually made that
decision. Petition for Review (PFR) File, Tab 3 at 19-20, 23 -24. In this regard,
the appellant relies upon a contemporaneous report written by a supervisory TSSE
involved in the incident as well as deposition testimony from that individual . Id.
at 24. The appellant also asserts that the agency did not submit any documentary
evidence or legal authority supporting its contentio n that the Acting Federal
Security Director had the discretion to a llow the placement of the IED on the
plane. Id. at 24-25. The appellant suggests that, because the AFSD -S actually
made the decision in question, he had a motive to retaliate against the appellant
and did so when he proposed the suspension s. Id. at 19-20.
5
¶6 The supervisory TSSE ’s incident report indicat ed that, after the item in
question was identified as an inert IED to be used for the training of DOD
personnel, the DOD contractor was “a llowed to continue per AFSD -S.” W-2 AF,
Tab 11, Ex. 30. Although this language could be interpreted as indicating that the
decision was made by the AFSD -S, other evidence in the record places this
statement in context and shows, as found by the administr ative judge, that the
decision was actually made by the Acting Federal Security Director. The
supervisory TSS E testified that both the AFSD -S and his supervisor, the Acting
Federal Security Director , came to the checkpoint and the Acting Federal Security
Director indicated, after a discussion with the AFSD -S, that he was going to use
his discretion to allow the item on the plane. Hearing Transcript (HT) at 167,
176-78 (testimony of the supervisory TSSE) . The supervisory TS SE explained
that his report onl y referenced the AFSD -S, and not the Acting Federal Security
Director, because the AFSD -S was the person he had called as his direct
supervisor and “that was the final decision as far as I’m concerned because I
don’t deal with FSD [Federal Security Directo r]; I deal with my boss.” Id.
at 196-97.
¶7 In addition, the AFSD -S testified that he responded to the incident with the
Acting Federal Security Director. HT at 216, 225 -26 (testimony of the AFSD -S).
The AFSD -S testified that the Acting Federal Security Director , using his
authorized discretion, “made a decision to allow them to transport, which at the
time was well within his authority to do so.” Id. at 226-27. He testified that he
never received any discipline regarding the incident. Id. at 227. He also testified
that he openly, in front of his subordinates, agreed with the Acting Federal
Security Director’s judgment to allow the inert IED on the plane, but privately
disagreed with the d ecision. Id. at 249. The deciding official in the suspension
actions testified that he was not employed at the MCO when the 2009 IED
incident occurred , but that the AFSD -S told him that the Acting Federal Security
6
Director made the decision to let a contractor with a simulated IED onto the
aircraft. HT at 255-56 (testimony of the deciding official) .
¶8 The appellant also identifies deposition testimony from the supervisory
TSSE indicating that he “believe[d] it was [the AFSD -S’s] decision in
conjunction with the acting FSD at the time.” W-2 AF, Tab 17 at 86. In response
to an earlier question, however, the supervisory TSSE testified at the deposition
that the AFSD -S was with the Acting Federal Security Director at the time, “[s]o
if anybody allowed that stuff into the aircraft, it was [the Acting Federal Security
Director].” Id. A letter dated July 16, 2012, similarly indicates that the TSA’s
Office of Inspection determined that the Acting Federal Security Director was
present at the screening room and, based on input from the on -scene TSSE and
after verifying the credentials of the DOD contractor, allowed the inert training
device to proceed through screening. W-2 AF, Tab 11, Ex. 26.
¶9 Despite the appellant’s contention that the agency did not present any
documentary evidence or legal authority supporting its c ontention that the Acting
Federal Security Director had the discretion to approve the placement of the IED
on the plane , the record includes the testimony set forth above , indicating that the
Acting Federal Security Director had such discretion , as well as the letter from
the Office of In spection confirming the authority of the Acting Federal Security
Director to exercise his discretion in that situation . Moreover, this evidence is
consistent with an Operations Directive affording Federal Security Director s or
Acting Federal Security Director s the discretion to permit a temporary, short -term
deviation from established security procedures when an articulable risk -based
assessment supports such a deviation. W-2 AF, Tab 11, Ex. 10.
¶10 Upon consideration of the evidence and arguments raised by the appellant
on review , and recognizing that the administrative judge’s finding s of fact in this
regard w ere based upon his observation of the witnesses at the hearing and
implicit determination s as to those witnesses’ cr edibility, we find that the
appellant has not establish ed a basis for disturbing the administrative judge’s
7
factual finding that the Acting Federal Security Director, not the AFSD -S, made
the authorized decision to allow the contractor to bring the inert IED onto the
aircraft . 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 wh ole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
¶11 As additional circumstantial evidence of the agency’s motive to retaliate,
the appellant contends that a coworker testified that he believed that the AFSD -S
was retaliating against the appellant because the AFSD -S told the coworker that if
he was unable to get the appellant fired he would transfer him to another airport.
PFR File, Tab 3 at 10-11. The appellant also asserts that the AFSD -S told a
subordinate to stay away from the ap pellant because he was “trouble ” and had a
“highly irregular” secret plan to fire him. Id. at 11-12.
¶12 As found by the administrative judge, the coworker who testified that the
AFSD -S told him that he would transfer the appellant if he could not fire him
did not “say anything about the appellant ’s whistleblowing .” ID at 12; see, e.g.,
HT at 274-76, 278 , 284 (testimony of the appellant’s coworker) . The
administrative judge correctly found that the re were compelling reasons other
than whistleblowing explain ing why the AFSD -S might w ant to fire the appellant ,
including problems with the appellant’s technical expertise, work ethic, and
ability to get along with others. ID at 12-13; see, e.g., HT at 220-22 (testimony
of the appellant’s fifth -level supervisor) . The appellant does not allege that t he
coworker testified to any knowledge of the appellant’s protected disclosure or any
connection between the disclosure and a desire on the part of the AFSD -S to fire
the appellant. Moreover, t hose same compelling reasons found by the
administrative judge are consistent with any comment made by the AFSD -S that
the appellant was “trouble” and any plans the AFSD -S may have been considering
to take further disciplinary action against him. In any event, t he appellant does
8
not explain why any plan the AFSD -S may have had to take further disciplin e was
“highly irregular.”
¶13 The appellant further contends that the AFSD -S told him of his displeas ure
with a whistleblower who had raised concerns in 2009 regarding agency
personnel who had failed to detect IEDs being transported through the airport.
PFR File, Tab 3 at 11, 15-16. The appellant contends that th is incident from 2009
reflects a pattern of the AFSD -S reacting with hostility toward whistleblowers.
Id. at 16. Moreover, the appellant asserts that investigations led or decided by
persons o ther than the AFSD -S exonerat ed him, while investigations u nder the
authority of the AFSD -S led to suspensions or letters of counseling. Id. at 17.
The appellant further asserts that the deciding off icial was motivated to retaliate
against him b ecause of an email he had written about the agency’s decision to
change its rules regarding which employees would serve as point s of contact and
supervise other TSSEs . Id. at 19 (testimony of the appellant) ; see HT at 35, 37,
42-43, 118 -20 (testimony of a former fellow TSSE) .
¶14 The appellant contends that he wrote a contemporaneous memorandum
documenting the AFSD -S’s reaction to a 2009 email a supervisory TSSE had
written to the Acting Federal Security Director stating that part of the problem
with certain screening issues involved management . PFR File, Tab 3 at 15. The
appellant asserts that h is memorandum indicated that the AFSD -S was very upset ,
stated that he “didn’t like technicians telling him about leadership issues ,” and
implied that he wanted to teach the supervisory TSSE a lesson. Id. Although this
assertion suggest s that the AFSD -S harbored some animus toward the supervisory
TSSE , neither the appellant nor the AFSD -S testified regarding this incident
at the hearing. Moreover, e ven assuming that the AFSD -S was displeased with
the email written by the supervisory TSSE, the appellant does not allege, and the
record does not show, tha t the AFSD -S took any personnel action against the
supervisory TSSE in reprisal for that email . Although the appellant contends that
individuals other than the AFSD -S exonerated him from wrongdoing, the
9
appellant testified that some of these investigation s were conducted by the
AFSD -S or at his bequest. HT at 28-29 (testimony of the appellant) . Moreover,
his allegation that the deciding official in the suspension actions was upset with
an email he had sent regarding point of contact procedures does not s how that he
acted in reprisal for the protected disclosure. Although th ese arguments raised on
review may constitute countervailing evidence that tends to detract from the
administrative judge’s findings in this case, we nevertheless agree with the initia l
decision’s reasoning and conclusion that the agency met its burden by clear and
conv incing evidence .
¶15 The appellant further contends that, even if the Acting Federal Security
Director approved the placement of the IED on the plane , the AFSD -S still had a
motive to retaliate “derived from the retaliatory motive of his superiors” and
reflect ing on the AFSD -S and the deciding official in the ir capacities as
representatives of the agency’s general institutional interest. PFR File, Tab 3
at 20-22. We recogn ize that t hose responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures, as the criticism may reflect on them in their capacities as
managers and employees. Wilson v. Department of Veterans Affairs , 2022 MSPB
7, ¶ 65; Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28-29; see Whitmore
v. Department of Labor , 680 F.3d 1353 , 1370 (Fed. Cir. 2012) . In Robinson v.
Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019), for
example, the court found that, although the deciding official did not have a
personal motive to retaliate against the appellant for contradicting an agency
Under Secretary, the Board’s administrative judge erred by failing to consider
whether he had a “professional retaliatory mo tive” against the appellant because
his disclosures “implicated the capabilities, performance, and veracity of [agency]
managers and employees, and implied that the [agency] deceived [a] Senate
Committee.” Nevertheless, for the reasons set forth in the in itial decision, see ID
10
at 7, 13 , and as modified by this Final Order, we find that any motive to retaliate
on the part of these officials was minimal.4
¶16 The appellant also asserts that the administrative judge did not address the
agency’s failure to show that it took similar actions against employees who are
not whistleblowers but who are otherwise similarly situated to him . PFR File,
Tab 3 at 6-7; see Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999) .5 In fact, the AFSD -S testified that he had issued similar
proposed suspensions to other employees for similar misconduct. HT at 234
(testimony of the AFSD -S). Neverthe less, even if the agency had failed to
introduce relevant comparator evidence, the third Carr factor is effectively
removed from consideration, although it cannot weigh in favor of the agency.
Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 18; see also Rickel v.
Department of the Navy , 31 F.4th 1358 , 1365 -66 (Fed. Cir. 2022) (“The lack of
evidence on the third Carr factor appears neutral[.]”) (internal citation omitted).
If the first two Carr factors were only supported by weak evidence, the failure to
present evidence of the th ird Carr factor might prevent the agency from carrying
its overall burden. Smith , 2022 MSPB 4 , ¶ 30; see also Miller v. Department of
4 The appellant contends that, even assuming that some discipline was warranted for his
misconduct , the penalties imposed by the agency were improperly enhanced in reprisal
for his whistleblowing. PFR File, Tab 3 at 8. Given the agency’s issuance of three
prior counseling memorand a placing the appellant on notice of similar improper
conduct , IAF, Tab 4, Subtabs K, S; W-2 AF, Tab 11, Ex. 28, as well as the seriousness
of the offenses that led to the suspensio ns at issue in this case , we find that the length
of the suspensions were not improperly increased based on reprisal for whistleblow ing.
In fact, the deciding official in the suspension actions testified that he believed that the
AFSD -S had treated the appellant too leniently. HT at 266 (testimony of the
deciding official) .
5 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuan t to
the All Circ uit Review Act , Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
11
Justice , 842 F.3d 1252 , 1262 -63 (Fed. Cir. 2016). That is not the case here,
where we find the strength of the agency’s evidence in support of Carr factors
one and two cuts in favor of the agency.
¶17 The appellant further contends that the agency treated him in a disparate
manner regarding the proposed 1 4-day suspension in 2014 because the proposal
was based on his failure to timely report a violation of agency rules by a
supervisory TSSE, while the agency imposed only a 3 -day suspension for the
supervisory TSSE, who twice committ ed the actual offense . PFR File, Tab 3 at 7.
The appellant asserts that this disparate treatment was sufficient to find that his
disclosure was a contributing factor in his 2014 suspension. Id. at 8-9.
¶18 The appellant asserts that the supervisory TSSE in question was a
whistleb lower like himself. Id. at 11. T o the extent that this is the case, any
comparison with this individual does not show that the agency treated a
nonwhistleblower more leniently than the appellant. In any event, we find that
the supervisory TSSE was not similarly situated to the appellant. The AFSD -S
proposed a 3-day suspension for the supervisory TSSE for misuse of G overnment
property and conduct unbecoming based on his use of a Government -owned
vehicle to run personal errands in September 2010 and in the fall of 2013,
W-2 AF, Tab 11, Ex. 12, and the deciding official sustained the charges and
agreed with the penalty, noting that the supervisory TSSE acknowledged his
wrongdoing and admitted responsibility and displayed remorse, id., Ex. 11; HT
at 265 (testimony of the Federal Security Director for Central Florida) . The
AFSD -S testified that he proposed a more serious penalty for the appellant than
the supervisory TSSE because the appellant had a disciplinary track record while
the supervisory TSSE had be en a “stellar” employee from the time he knew him.
HT at 250-51 (testimony of the AFSD -S). The deciding official also noted the
supervisory TSSE’s exemplary work record and lack of any prior discipline ,
W-2 AF, Tab 11, Ex. 11, and explained that in asses sing the penalty he
considered that the appellant’s misconduct regarding the conduct unbecoming
12
charge was repeated and alone warranted the aggravated penalty of at least a
7-day suspension, while he decided not to impose a 30 -day suspension on the
supervi sory TSSE because his conduct w as not willful , HT at 264-65 (testimony
of the deciding official ). The deciding official also testified that he may have
mitigated the appellant’s penalty further if he had taken responsibility for his
actions. Id. at 262. In sum, we find that the appellant and the TSSE were not
similarly situated . In addition, this argument does not demonstrate any error in
the administrative judge’s determination that the appellant did not prove that his
disclosure was a contributing f actor in his 7 -day suspension in 2014 . See ID
at 6-7.
¶19 Accordingly, having considered in the aggregate all of the pertinent
evidence in the record, see Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore ,
680 F.3d at 1368 , we deny the appellant’s petition for review and affirm the
initial decision as modified by this Final Order . The initial decision, as
supplemented by this Final Order , constitutes the Board’s final decision in this
matter. 5 C.F.R. § 1201.113 .
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board ’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
6 Since the issuance of the initial deci sion in this matter, the Board may have updated
the notice 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
regarding which cases fall within their jurisdiction. If you wish to seek 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
14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
15
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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 Appe als for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
7 The original statutory provision that provided f or judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petition s for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16
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.
17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PLATT_DAVID_B_AT_1221_14_0790_W_2_FINAL_ORDER_REDACTED_2027257.pdf | 2023-04-17 | null | AT-1221 | NP |
3,270 | https://www.mspb.gov/decisions/nonprecedential/VEATCH_WILFRED_R_SF_0831_16_0805_I_1_FINAL_ORDER_2021476.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILFRED R. VEATCH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0805 -I-1
DATE: April 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Jane Bancroft , 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
affirmed the reconsideration decision issued by the Office of Personnel
Management (OPM) denying his application for a deferred retirement annuity .
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to find that the appellant did not seek to make a deposit into the
Civil Service Retirement and Disability Fund (Fund) , we AFFIRM the initial
decision.
DISCUSSIO N OF ARGUMENTS ON RE VIEW
¶2 The administrative judge made the following factual findings, which the
parties do not dispute on review . The appellant formerly worked as a civilian
employee of the Department of the Navy (Navy) in Subic Bay, Philippines.
Initia l Appeal File (IAF), Tab 2 at 10 , Tab 3, Initial Decision (ID) at 2. He
received an indefinite appointment as a Machinist in the excepted service on
October 5, 1965 , and hi s subsequent appointments were either temporary or
indefinite appointments in the e xcepted service until he retired on July 17, 1992 .
ID at 2, 7; Petition for Review (PFR) File, Tab 1 at 2 ; IAF, Tab 2 at 10 . Below,
the parties submitted only one Standard Form 50 (S F-50), which documents the
appellant’s retirement plan as “other .” IAF, Tab 2 at 10 ; ID at 2 -3. The SF-50
remarks section stated that he was covered by the retirement system applicable to
3
employees hired pursuant to the Filipino Employees Personnel Instructions
(FEPI) . IAF, Tab 2 at 10; ID at 2 -3.
¶3 On July 31, 2013, more tha n 20 years after the appellant retired , he applied
for a deferred retirement annuity under the Civil Service Retirement System
(CSRS ) based on his service with the Navy from Octo ber 5, 1965, to July 17,
1992 .2 IAF, Tab 2 at 8 -9; ID at 3-4. OPM issued a reconsideration decision
denying his application. IAF, Tab 2 at 6-7.
¶4 The appellant appealed OPM’s reconsideration decision to the Board and he
declined a hearing on his appeal .3 IAF, Tab 1 at 1, 3. The administrative judge
issued an initial de cision affirmin g OPM’s reconsideration decision. ID at 11.
She found that, although the appellant had sufficient creditable Federal service,
he was not eligible for a deferred annuity under the CSRS because he failed to
show that any of h is service was perfo rmed in a position covered under the CSR S.
Id.
¶5 The appellant has filed a petition for r eview of the initial decision. PFR
File, Tab 1. OPM has filed a response in opposition to his petition . PFR File,
Tab 4.
¶6 The appellant, as an applicant, bears the burden of proving his entitlement
to an annuity. See Cheeseman v. Office of Personnel Management , 791 F.2d 138 ,
140-41 (Fed. Cir. 1986). To qualify for a civil service retirement annuity, a
2 The administrative judge characterized the appellant as also seeking the right to make
a deposit to the Fund . ID at 3 -4. This characterization was consistent with OPM’s
interpretation of a letter submitted by the appellant with his deferred annuity
application. IAF, Tab 2 at 4-6. However, his argument was that he was not required to
make such a deposit to be eli gible for an annuity. IAF, Tab 1 at 3, Tab 2 at 14; PFR
File, Tab 1 at 1 . According ly, w e modify the initial decision to find that the appellant
only applied for a deferred annuity.
3 This appeal originally was consolidated with seven other simultaneously filed appeals
making virtually identical claims , but the administrative judge terminated the
consolidation on the same date that she issued the initial decision . ID at 1 n.1; see
Eight Philippine Retirement Applicants v. Office of Personnel Management , MSPB
Docket No. SF -0831 -16-0806 -I-1, Consolidation Appeal File, Tab 6.
4
Government employee must complete at least 5 years of creditable service with at
least 1 of the last 2 years of his Federal s ervice in a “covered” position. 5 U.S.C.
§ 8333 (a)-(b); Quiocson v. Office of Personnel Management , 490 F.3d 1358 , 1360
(Fed. Cir. 2007). Covered service includes only an appointment that is subject to
the CSR S and for which an employee must therefore deposit part of his pay into
the Fund. Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301 , ¶ 7
(2011).
¶7 The administrative judge affirmed OPM’s reconsideration decision based on
her finding t hat the ap pellant was not eligible for a CSRS annuity because he had
not served in a position covered by the CSRS. ID at 6 -7, 9. On review, the
appellant argues that his service was covered by virtue of 5 C.F.R. § 831.303 (a)
and 5 U.S.C. § 8334 (c). PFR File, Tab 1 at 2-17. He also argues that the
retirement system available to FEPI employees is not “another retirement system
for Government employees” that would preclude his coverage under the CSRS .
Id. at 17-19. In addition, he submits documents with his petition for review.4 Id.
at 20-25. For the reasons discussed below, we agree with the a dministrative
judge ’s decision to affirm OPM ’s reconsideration decision .
¶8 Well-established principles of law preclude this appellant from qualifying
for a deferred retirement annuity . Temporary and indefinite app ointments are
excluded from CSRS coverage. Quiocson , 490 F.3d at 1360; Encarnado ,
116 M.S.P.R. 301 , ¶ 8; 5 C.F.R. § 831.201 (a)(1) -(2), (6), (13)-(14). The
appellant’s reliance on 5 C.F.R. § 831.303 (a) is misplaced, as that section
addresses only whether service is creditable, not whether it is covered. See Tate
4 We dec line to consider these new documents on review. The appellant has not
indicated why these documents, which are date d 1959, 1980, 1985, and 1992,
respectively, w ere not available below despite his due diligence. See Avansino v. U.S.
Postal Service , 3 M.S.P.R. 211 , 214 (1980) (explaining that under 5 C.F.R. § 1201.115 ,
the Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the reco rd was closed despite the
party’ s due diligence ).
5
v. Office of Personnel Management , 109 M.S.P.R. 57 , ¶¶ 7-8 (2008) (explaining
that section 831.303(a) provides CSRS credit for pre -1969 Federal service).
Further, 5 U.S.C. § 8334 (c), which permits certain individuals to make deposits to
the Fund , does not support the appellant’s claims . Section 8334(c) applies only to
individuals who, unlike the appellant, have covered service ; in other words,
service during which contributions to the Fund were withheld from the
employee’s pay . Muyc o v. Office of Personnel Management , 114 M.S.P.R. 694 ,
¶¶ 12-13 (2010) ; 5 C.F.R. § 831.112 (a)(2) (interpreting section 8334(c) as
permitting an individual who occupied a position “in which retirement deductions
were properly withheld” to make a deposit or redeposit ). The appellant has not
alleged that such contributions were withheld .
¶9 The appellant’s argument regarding the FEPI is likewise unavailing.
Receiving retirement benefits under a non -CSRS plan, such as the FEPI, indicates
that service is not covered service. Espiritu v. Office of Personnel Manag ement ,
114 M.S.P.R. 192 , ¶ 8 (2010) , aff’d per curiam , 431 F. App’x 897 (Fed. Cir.
2011) . Section 8331(1) (L)(ii) of Title 5 provides that an employee who received
benefits under a non -CSRS plan available to Government employees does not
have covered service. Quiocson , 490 F.3d at 1360. The U.S. Court of Appeals
for the Federal Circuit has found the FEPI to be such a retirement system, and the
appellan t has provided no evidence to the contrary. Id.; PFR File, Tab 1 at 17-19.
¶10 Accordingly, w e deny the petition for review and affirm the initial decision ,
as modified .
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented b y this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
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
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described 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 fil ing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
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
7
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any 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. ____ , 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 .
8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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
9
of appeals of competen t jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of cer tain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
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 | VEATCH_WILFRED_R_SF_0831_16_0805_I_1_FINAL_ORDER_2021476.pdf | 2023-04-14 | null | SF-0831 | NP |
3,271 | https://www.mspb.gov/decisions/nonprecedential/DRAWHORN_CEDRIC_J_DC_0752_15_0332_I_4_LACK_OF_QUORUM_ORDER_2021487.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CEDRIC J. DRAWHORN,
Appellant,
v.
SECURITIES AND EXCHA NGE
COMMISSION,
Agency.
DOCKET NUMBER S
DC-0752 -15-0332 -I-4
DC-0752 -15-0851 -I-4
DATE: April 14, 2023
Peter Broida , Esquire, Arlington, Virginia, for the appellant.
Daniel L. Garry , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Member
ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension and removal . Vice Chairman Harris has
recused herself from consideration of this case . Because there is no quorum to
alter the administrative judge’s initial decision , the initial decision now becomes
the final decision of the Merit Systems Protection Board in this appeal. Title 5 of
the Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3 (d).
2
NOTICE OF APPEAL RIG HTS1
You may obtain review of the 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 the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate 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 order . 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 1 0, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you ma y obtain
judici al review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this o rder. 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 y our representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
your representative receives this order . If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
4
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this order . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and
your repre sentative receives this order before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this order .
If you submit a request for review to t he EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a metho d requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement A ct of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
5
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.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this order . 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The 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
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 | DRAWHORN_CEDRIC_J_DC_0752_15_0332_I_4_LACK_OF_QUORUM_ORDER_2021487.pdf | 2023-04-14 | null | S | NP |
3,272 | https://www.mspb.gov/decisions/nonprecedential/REID_ROBENA_G_DC_1221_17_0712_W_1_LACK_OF_QUORUM_ORDER_2021500.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBENA G. REID,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DC-1221 -17-0712 -W-1
DATE: April 14, 2023
Peter B. Broida , Esquire, Arlington, Virginia, for the appellant.
Christopher T. Hall and Kimberly Eaton , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal as withdrawn, with prejudice .
Vice Chairman Harris has recused herself from consideration of this case .
Because there is no quorum to alter the administrative judge’s initial decision , the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations, section
1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This decision shall not be considered as
precedent by the Board in any other case . 5 C.F.R. § 1200.3 (d).
2
NOTICE OF APPEAL RIG HTS1
You may obtain review of the final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable ti me
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular for um is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U. S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this order . 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
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 ma y obtain
judicial review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this order . 5 U.S.C. § 7703 (b)(2); see Perry v. Merit
Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and y our representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
your representative receives this order . If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
4
to waiver of any requirement of prepayment of fees, costs, or ot her security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this order . 5 U.S.C . § 7702 (b)(1). If you have a representative in this case, and
your repre sentative receives this order before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this order .
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeal s of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this order . 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The 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
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 | REID_ROBENA_G_DC_1221_17_0712_W_1_LACK_OF_QUORUM_ORDER_2021500.pdf | 2023-04-14 | null | DC-1221 | NP |
3,273 | https://www.mspb.gov/decisions/nonprecedential/SADLER_MARK_L_DE_1221_16_0122_W_1_FINAL_ORDER_2021506.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK L. SADLER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-1221 -16-0122 -W-1
DATE: April 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott R. Oswald , Esquire , and Adam A. Carter , Esquire, Washington, D.C.,
for the appellant .
Kateni T. Leakehe , Esquire, Dugway, Utah, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action appeal .
On petition for review, the appellant a sserts that the administrative judge should
have sanctioned the agency based upon its apparent loss of certain electronic
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
files, the appellant made nonfrivolous allegations of what he reasonably believed
were protected disclosures, and the agency did not prove by clear and convincing
evidence that it wou ld have taken the same actions in the absence of his protected
activities .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 bas ed 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. T itle 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
establishe d any basis under section 1201.115 for granting the petition for review.
2 The appellant also submitted motions for leave to supplement his petition for review
with arguments concerning court decisions and an amicus brief, all of which were
issued after his petition for r eview but before the instant decision. P etition for Revew
(PFR) File, Tab 10 at 4-5 (referencing Smith v. General Services Administration ,
930 F.3d 1359 (Fed. Cir. 2019)); PFR File, Tab 15 at 4 -5 (referencing Delgado v.
Department of Justice , 966 F.3d 556 (7th Cir.), amended and supersed ed on reh’g by
Delgado v. Department of Justice , 979 F.3d 550 (7th Cir. 2020); Tao v. Department of
Veterans Affairs , MSPB Docket No. SF -1221 -19-0147 -W-1, Initial Decision (Feb. 11,
2020); PFR File, Tab 17 at 4 -5 (referencing Hessami v. Merit Systems Protection
Board , 979 F.3d 1362 (Fed. Cir. 2020)); PFR File, Tab 21 at 4 -5 (referencing Tao v.
Merit Systems Protection Board , 855 F. App'x 716 (Fed. Cir. 2021 )). These motions
are denied. Although we have considered Smith , Delgado , Tao, and Hessami , we find
no basis for concluding that they warrant further argument or a different result.
Separately, the appellant submitted a motion for leave to supplement his petition for
review with arguments and evidence concerning what appears to be a new theory of his
case. In particular, the appellant suggests that the agency retaliated against him by
limiting the time he could spend on a presentation in or around March 2013, and if it
had not engaged in this “censorship,” a more complete presentation could have possibly
triggered a chain of events in which a particular cyberattack on government systems,
discovered in 2020, would not have occurred. PFR File, Tab 4-7. That motion is also
denied.
3
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL 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 fin al decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that for um for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 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 applies to you only if you have claimed that you
were affected by an action that is appealable to the 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. ____ , 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. § 2000 e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC n o later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street , N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 revie w “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Co urt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance i s the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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
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 | SADLER_MARK_L_DE_1221_16_0122_W_1_FINAL_ORDER_2021506.pdf | 2023-04-14 | null | DE-1221 | NP |
3,274 | https://www.mspb.gov/decisions/nonprecedential/DAY_MICHAEL_A_PH_0752_16_0409_I_1_FINAL_ORDER_2021655.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL A. DAY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-0752 -16-0409 -I-1
DATE: April 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gale R. Thames , Washington, D.C., for the appellant.
Stephen W. Furgeson , Esquire, Landover, Maryland, 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 removal appeal as untimely filed. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
erroneous findi ngs 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 i nitial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due dilige nce, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, w e conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED to address the agency’s incomplete notice of appeal rights in its
removal decision, we AFFIRM the initial decision.
BACKGROUND
¶2 The following facts are undisputed. Effective May 28, 2016, the agency
removed the appellant from Federal service. Initial Appeal File (IAF), Tab 1 at 2,
11-13, Tab 14, Initial Decision (ID) at 2 . In the decision letter, the agency
notified the appellant that he had the right to appeal to the Board within
30 calendar days from the May 28, 2016 effective date of his removal. IAF,
Tab 1 at 13 . The agency served him with the removal decis ion letter on May 31,
2016, and h e filed an appeal with the Board on August 1, 2016 , which was
62 days after his receipt of the removal decision letter . IAF, Tab 1 at 1, Tab 6
at 5, 11; ID at 2.
¶3 The administrative judge informed the appellant that his appeal appeared to
be untimely, advised him of his burden of proof on timeliness , and ordered him to
submit evidence and argument on the issue . IAF, Tab 1 at 2, Tab 5. The agency
responded by filing a motion to dismiss the appeal as untimely filed. IAF, Tab 6
at 6-8. The appellant, through his designated representative, responded to the
3
administrative judge’s timeliness order by conceding that his removal appeal was
untimely and providing no argume nt that he had good cause for filing his appeal
late. ID at 2 -3; IAF, Tab 8 at 1.
¶4 The administrative judge advised the parties that he believed it appeared
appropriate to dismiss the appeal as untimely and ordered the appellant to provide
written notifi cation , before November 14, 2016, if he objected to the dismissal .
IAF, Tab 13 at 2 . The appellant did not respond to the order, and the
administrative judge issued an initial decision that dismissed the appeal as
untimely filed without holding the heari ng that the appellant requested . ID
at 2-4; IAF, Tab 1 at 1.
¶5 The appel lant has filed a petition for review arguing that he had good cause
for his filing delay. Petition for Review ( PFR ) File, Tab 1 at 2.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 To be timely, an appellant must file his appeal within 30 calendar days after
the effective date of the challenged action or receipt of the agency’s decision,
whichever is later. See 5 C.F.R. § 1201.22 (b). Here, the appellant’s removal was
effective on May 28, 2016. IAF, Tab 1 at 11. However, the agency submitted
proof that he received the decision letter on May 31, 2016. IAF, Tab 6 at 5, 11 ;
ID at 4 . Thus, the appellant’s deadline f or filing his appeal was June 30, 2016 ,
and he filed his appeal over 1-month late, on August 1, 2016. IAF, Tab 1. The
parties do not dispute the administrative judge’s finding that the appeal was
untimely filed, and we decline to disturb this finding on review . ID at 4.
¶7 For the first time on review, however, the appellant attempts to prove good
cause for his untimely filing by arguing that he was taking medication and
receiving treatment for an ongoing health condition and that he did not
understand the importance of the notice in the removal decision letter. PFR File,
Tab 1 at 2. The appellant also argues that the administrative judge improperly
based his decis ion on the facts in a grievance decision in which the appellant
4
prevailed 5 years ago. Id. The administrative judge found that the appellant
failed to meet his burden to show g ood cause for his filing delay . ID at 4. For
the reasons discussed below, we agree.
¶8 The Board will waive the filing time limit for an appeal only upon a
showing of good cause for the delay. 5 C.F.R. §§ 1201.12 , 1201.22(c). To
establish good cause, 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 contr ol that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his appeal . Moorman v.
Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d per curiam , 79 F.3d
1167 (Fed. Cir. 1996) (Table).
¶9 An agency’s failure to provide complete notice of Board appeal rights is a
factor in the good cause determination . Mauldin v. U.S. Postal Service ,
115 M.S.P.R. 513 , ¶¶ 11-12 (2011). Here, t he admi nistrative judge found that the
agency’s notice to the appellant regarding his Board appeal rights in the removal
decision was sufficient. ID at 4. However, although the agency advised the
appellant of his right to file an appeal within 30 days of the ef fective date of the
removal, it failed to advise him that he could file an appeal within 30 da ys from
receipt of the decision , if later . IAF, Tab 1 at 13 ; see 5 C.F.R. § § 1201.21 (a)
(requiring an agency to advise an employee of the time li mits for filing an appeal
when issuing a decision notice on a matter that is appealable to the Board ),
1201.22(b) (setting forth the relevant time limits) . The notice also was deficient
in that it did n ot advise the appellant of his right to file a grievance or how such
an election would affect his right to file an appeal . IAF, Tab 1 at 13, Tab 6 at 5,
5
10-12, Tab 7 at 1 ; see 5 C.F.R. § 1201.21 (d) (requiring such notice) . Further, the
removal decision letter did not inform the appellant that his appeal would be
dismissed as untim ely filed unless a good reason wa s shown for the delay . IAF,
Tab 1 at 13; see Mauldin , 115 M.S.P.R. 513, ¶ 10 (explaining that such notice is
required by 5 C.F.R. §§ 1201.21 (a) and 1201 .22(c)). Therefore, we modify the
initial decision to consider the effect that the agency’s deficient notice had in
determining whether the appellant has shown good cause for his delay , still
finding that the appellant did not demonstrat e good cause.
¶10 The 32 -day filing delay here was significant. See Crook v. U.S. Postal
Service , 108 M.S.P.R. 553 , ¶ 6 (finding that a 1-month delay in filing a petition
for review was significant ), aff’d per curiam , 301 F. App’x 982 (Fed. Cir. 2008) .
Further, the appellant , who is represented, conceded below that h is appeal was
untimely and provided no explanation or showing of due d iligence .3 IAF, Tab 1
at 4, Tab 2, Tab 5 at 2-3, Tab 8 at 1 ; ID at 2 -4.
¶11 The agency informed the appellant that he could file his appeal within
30 days of the May 28, 2016 effectiv e date of the action. IAF, Tab 1 at 13. This
was an error, because the a ppellant had an additional 3 days, or 30 days from his
May 31, 2016 receipt of the removal decision , to file his appeal . IAF, Tab 6 at 5,
11; see 5 C.F.R. § 1201.22 (b). However , because the agency’s deficiency should
have caused the appellant to file his appeal too early, rather than too late, and his
delay far exceeded these additional 3 days, we find that this deficiency did not
contribute to the delay. In addition, t he agenc y’s failure here to explain the
implications of an untimely filing was not good cause for the delay . IAF, Tab 1
at 13; see Mauldin , 115 M.S.P.R. 513 , ¶¶ 10 -14 (concluding that the agency’s
3 Instead of explaining his delay, the appellant requested that he be permitted to proceed
with a constructive suspension appeal. IAF, Tab 1 at 8. The Board docketed a new
appeal to adjudicate this claim separately. Day v. U.S. Postal Service , MSPB Docket
No. PH-0752-17-0063 -I-1, Initial Decision at 1 & n.1 (July 20, 2017) . The appellant’s
suspension was reversed by the administrative judge. Id. at 2, 5. That decision is now
final.
6
failure to provide an employee with notice that his appeal would be dismissed if
untimely unless good cause was shown for the delay was insufficient to excuse
the employee’s untimeliness because , as pertinent here, he failed to present
evidence that the deficient notice was the cause of his delay ).
¶12 As for the agency’s failure to notify the appellant of his grievance rights or
the effect of filing a grievance on his Board appeal rights , the appel lant indicates
that he is preference eligible. IAF, Tab 1 at 1. Preference -eligible employees in
the U.S. Postal Service are entitled to simultaneously pursue both a grievance and
a Board appeal . Blanding v. U.S. Postal Service , 121 M.S.P.R. 248, ¶ 5 (2014).
The appellant did, in fact, file such a grievance. IAF, Tab 1 at 8 , Tab 6 at 5,
10-11. In acknowl edging that he filed an untimely appeal, the appellant stated
that his “termination has been sent forward to arbitration.” IAF, Tab 8 at 1.
Thus, the agency’s failure to notify him that he could file both a grievance and a
Board appeal does not appear to have discouraged the appellant from filing his
appeal . Id.; PFR File, Tab 1 at 2.
¶13 For the first time on review, the appellant alleges that when he received the
removal decision he “was under treatment for emotional distress and was under
medication presc ribed by his treating physician.” PFR File, Tab 1 at 2. He
argues that he was therefore unable to understand his appeal rights. Id. The
Board will find good cause for an untimely filing when a party demonstrates that
he was unable to file a timely appe al due to illness or mental or physical
incapacity. Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998).
However, because the appellant did not claim below that his appeal was untimely
because of illness or medical incapacity , we decline to consider this new
argument on review .4 ID at 2 -4. The Board generally will not consider
4 The Board held in Lacy that, when an appellant states that the reason 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 ev idence and argument to sh ow that he met that standard.
78 M.S.P.R. at 438. Here, however, t he appellant neither explicitly nor implicitly
7
arguments raised for the first time in a petition for review absent a showing that
the appellant based his arguments on new and material evidence not previously
available despite his due diligence. Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 (1980). The appellant in this case has not made the required
showing .
¶14 Finally, contrary to the appellant’s argu ment on review, the administrative
judge did not rely on a grievance decision from 5 years prior in finding his Board
appeal untimely. ID at 1 -4; PFR File, Tab 1 at 2.
¶15 Accordingly, we affirm the dismissal of the appeal as untimely filed.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summar y of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
provided sufficient information to trigger an obligation on the part of the administrative
judge to clarify whether a medical condition was the reason for his delay in filing his
appeal. Cf. Adams v. Office of Personnel Management , 98 M.S.P.R. 541 , ¶ 15 (2005)
(finding that the appellant’s reference , on appeal, to his mental h ealth condition and its
effects triggered the administrative judge ’s obligation to provide specific notice of what
was required to demonstrate that the untimely filing was the result of illness , although
the appellant did not explicitly state that was why he filed his appeal late ).
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
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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.
9
(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 befor e
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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 allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appea ls
for the Federal Circuit or any other circuit court 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,” 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.
Contact information for the courts of appeals can be 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 | DAY_MICHAEL_A_PH_0752_16_0409_I_1_FINAL_ORDER_2021655.pdf | 2023-04-14 | null | PH-0752 | NP |
3,275 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_JEROME_W_DC_0752_16_0064_I_1_FINAL_ORDER_2021690.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEROME W. JOHNSON,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -16-0064 -I-1
DATE: April 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin McCants , Washington, D.C., for the appellant.
Robert Howard Walton , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appella nt has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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. Except as expressly MODIFIED by
this Final Order to find it unnecessary to make a determination regarding whether
the agency proved its charge of absence without leave (AWOL) , and to VACATE
the administrative judge’s alternative finding regarding the appellant’s
whistleblower reprisal a ffirmative defense, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed by the agency ’s Naval Supply Systems
Command (NAVSUP) as a Postal Supervisor , domiciled at a Naval District
Washington (NDW) installation . Initial Appeal File (I AF), Tab 7 at 51, 95. On
April 2, 2015, he called the Veterans Administration (VA) Crisis Hotline and
made a reference to the Washington Navy Yard shooting (in which 13 people
were killed on September 16, 2013) . Id. at 45, 53 . According to the VA
respon der who took the appellant’s call, the appellant also threatened to kill
several people and then commit suicide. Id. at 53. Individuals from the Crisis
Hotline contacted the NDW and the appellant’s supervisor regarding the
appellant’s statements . Id. at 63-64. As a result of safety concerns raised by the
statements, the commanding officer of the NDW installation where the appellant
3
worked issued the appellant a debarment letter and NDW officers escorted him
out of his work locatio n the same day . Id. at 64.
¶3 The app ellant’s third -level supervisor placed the appellant on paid
administrative leave from April 3 to June 26, 2015. IAF, Tab 7 at 79, 8 1-83, 86 ,
Tab 27, Hearing Compact Disc (HCD) (testimony of the appellant’s third -level
supervisor) ; Petition fo r Review (PFR) File, Tab 6 at 89 -90. On April 7, 2015,
the NDW issued the appellant another letter , barring him from all NDW
installations, including the one where he worked. IAF, Tab 7 at 76-77. The
appellant appealed that barment order to the NDW Comm andant, and his appeal
was denied. Id. at 70 -74.
¶4 On June 12, 2015, the appellant’s third -level supervisor warned the
appellant that unless he was “able to resolve [his] barment from naval
installations, enabling [him] to legally access [his] appointed p lace of work, [he
would] be placed in an [AWOL] status ” beginning June 29, 2015. Id. at 79. The
appellant took annual leave from June 29 to July 23, 2015. PFR File, Tab 6 at 89;
IAF, Tab 7 at 86. From July 24 to September 25, 2015, the agency designated the
appellant ’s leave status as AWOL . PFR File, Tab 6 at 88; IAF, Tab 7 at 86.
¶5 On September 25, 2015, the agency removed the appellant from the Federal
service. IAF, Tab 7 at 51. The removal was based on one ch arge of making
statements that resulted in disruption and anxiety in the workplace and one charge
of being AWOL. Id. at 29 -31.
¶6 The appellant timely filed an appeal with the Board. IAF, Tab 1. The
administrative judge held the appellant’s requested heari ng. HCD . In her initial
decision, the administrative judge sustained the agency’s charges, found that the
appellant failed to prove his affirmative defenses of reprisal for making a
protected disclosure or retaliation for engaging in the Equal Employment
Opportunity (EEO) process, found that the agency proved nexus , and concluded
that the agency -imposed penalty of removal was within the bounds of
reasonableness. IAF, Tab 28, Initial Decision (ID) at 10-22.
4
¶7 The appellant has filed a petition for review, and the agency has filed a
response opposing the petition.3 PFR File, Tabs 1, 3. The Office of the Clerk of
the Board ordered the parties to file evidence and argument addressing the
appellant’s employment relationship to the NDW. PFR File, Tab 5. The agency
has submitted a response, and the appellant has replied . PFR File, Tabs 6-7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly sustained the charge of making statements that
resulted in disruption and anxiety in the workplace.
¶8 The administrative judge found that the agency met its burden to prove the
charge of making statements that resulted in anxiety and disruption in the
workplace . ID at 6-7, 13. We agree.
¶9 In making her determination, the administrative judge credited the
testimony of the Crisis Hotline responder that the appellant referenced the Navy
Yard shooting during his call and indicated that if the responder thought that that
was bad, the appellant was going to take out a number of people and commit
suicide. ID at 13; IAF, Tab 7 at 30 , 53. The administrative judge found that, as a
result of the appellant’s statements, his first -level supervi sor experienced anxiety,
his third -level supervisor reported to work on his day off, and NDW police
intervened a nd escorted the appellant fr om his work location, ID at 13; IAF,
Tab 7 at 30 -31. See Gray v. Government Printing Office , 111 M.S.P. R. 184, ¶¶ 2,
3 In his petition for review, the appellant does not challenge the administrative judge’s
finding that he failed to prove that the agency removed him because of his prior EEO
activities. PFR File, Tab 1; ID at 18 -19. Nor does the appellant seem to challenge the
administrative judge’s finding that he fa iled to prove his affirmative defense of reprisal
for making a protected disclosure. PFR File, Tab 1; ID at 16 -18. Because the
administrative judge found that the appellant failed to prove that he made a protected
disclosure, we vacate her alternative fi nding that the agency proved by clear and
convincing evidence that it would have removed the appellant in the absence of his
alleged protected disclosure, ID at 16-17. Scoggins v. Department of the Army ,
123 M.S.P.R. 592 , ¶ 28 (2016). We otherwise discern no basis to disturb her findings
regarding these affirmative defenses. Further, we have reviewed the relevant legislatio n
enacted during the pendency of this appeal a nd find that none impact the outcome .
5
5-6, 16 (2009) (finding that an agency proved a charge of disruption in the
workplace and because the appellant’s statements, including that he “might do
something bad” to his supervisor, was “going to kill him with a machete, ” and
was going to “cut . . . him to pieces ,” caused anxiety to those who overheard
them ).
¶10 On review, the appellant argues that the administrative judge erred by
“accepting testimony from” the responder who received the appellant’s call to the
VA Crisis Hotline because he violated N.Y. Mental Hyg. Law § 9.46. PFR File,
Tab 1 at 4. That law requires any “mental health professional” to report to certain
authorities when he reasonably determines that a person he is treating is likely to
cause serious harm to himself or ot hers. N.Y. Mental Hyg. Law § 9.46 . First, it
is not clear that the responder is a mental health professional under the statute,
and indeed the appellant argues that he is not. PFR File, Tab 1 at 4. Thus, the
appellant has failed to show that the statut e applies to the responder. Second,
assuming that the responder violated the statute, the appellant has failed to
explain why that would be cause for prohibiting his testimony. Id. Accordingly,
we find the appellant’s argument unpersuasive.4 To the ext ent that the appellant
is seeking to assert a psychotherapist -patient privilege, we decline to find that any
such privilege was violated. PFR File, Tab 1 at 4 -5; IAF, Tab 14 at 4 . T he
appellant was specifically cautioned by the counselor that his statements might
trigger a duty to warn, yet he continued to make them. IAF, Tab 7 at 30, 53 -54,
93; ID at 13; see Gray , 111 M.S.P. R. 184 , ¶ 10 (explaining that whether an
4 Although the appellant did not raise this argument below, we have considered it for
the first time on review because it is closely related to his argument below that st aff at
the Crisis Hotline violated the statute by reporting his telephone call to the agency.
IAF, Tab 14 at 2 -4; see Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
(1980) (observing that the B oard 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 ). The appellant has not
re-raised this argument on review .
6
appellant is aware his statements might not be kept confidential is a factor in
determining whether they are covered by a psychotherapist -patient privilege).
¶11 The appellant challenges the administrative judge’s fin ding that the Crisis
Hotline responder was credible. PFR File, Tab 1 at 4 -5; ID at 11 -13. In making
this finding , the administrative judge considered the relevant factors used to
assess credibility . Id. (citing Hillen v. Department of the Army , 35 M.S.P.R. 453 ,
458 (1987) (listing factors to be considered in making credibility
determinations)). In crediting the responder, the administ rative judge found that
he was unbiased . ID at 12 -13. She also found that the appellant’s testimony that
he was calm when he made the hotline call was inherently improbable in light of
his recent reassignment and harassment charges pending against him . Id.; IAF,
Tab 7 at 63.
¶12 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations on ly when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). We find no
sufficiently sound reasons here. The appellant argues that the administrative
judge failed to consider that the responder read from his notes and talked to his
supervisor during the hearing . PFR File, Tab 1 at 4. The appellant also asserts
that the responder made inconsistent statement s on April 2, 2015, regarding
whether the appellant threatened to “kill his supervisor” or “take out several
people .” Id. at 5. Finally, he argues that the responder testified that the hotline
call lasted only 10 minutes , contradicting the responder’s earlier statement to the
agency that the call was 3 5-40 minutes. Id.; IAF, Tab 7 at 53.
¶13 As to the length of the call, we decline to disturb the administrative judge’s
finding that the responder’s error regarding the length of the call in his earlier
stateme nt to the agency did not significantly undermine his credibility . ID at 7-8,
12 n.1 ; see Broughton v. Department of Health and Human Services , 33 M.S.P.R.
7
357, 359 (1987) (observing that m ere reargument of factual issues already raised
and properly resolved by the administrati ve judge below do n ot establish a basis
for review). As to the responder’s alleged referral to his notes during the hearing,
the appellant appears to misunderstand the hearing process . PFR File, Tab 1 at 5.
Although the responder initially looked at his prior statement to the agency while
testifying, the administrative judge requested that he testify from his memory, and
he proceeded to do so.5 HCD (testimony of the responder) . We also do not agree
that the responder’s statements were inherently incons istent , as alleged by the
appellant . PFR File, Tab 1 at 5. The responder consistently stated , as charged by
the agency , that the appellant referenced the Navy Yard shooting and said he was
going to take several people out and the n commit suicide . HCD (t estimony of the
responder) ; IAF, Tab 7 at 30, 53 , 63-64.
¶14 The appellant contends that the administrative judge also erred in
concluding that the responder stated that he left voicemail messages for the
appellant because the responder testified that he did not know the appellant’s
telephone number . PFR File, Tab 1 at 5. In fact, the administrative judge found
that the responder stated that he did not leave a voicemail message for the
appellant. ID at 7. Accordingly, we find the appellant’s argument unav ailing.
We find it unnecessary to make a determination regarding the AWOL charge .
¶15 The appellant further alleges that the administrative judge “erred by not
recognizing his forced leave” while the agency inve stigated his alleged
5 As to the allegation that the responder spoke with his supervisor at some point during
the proceedings, we have been unable to discern whether such conversations occurred
on the record . PFR File, Tab 1 at 5. Further, the appellant has not alleged any
improprieties in any such discussion. Therefore, we decline to consider this argument
further. See Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992)
(explaining that a petition for review must contain sufficient specificity to enable the
Board to ascertain whether there is a serious evidentiary challenge j ustifying a complete
review of the record) ; Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129 , 132 (1984) (declining to find that the presiding official’s failure to
mention all of the evidence meant that she did not consider it), aff’d , 776 F.2d 1062
(Fed. Cir. 1985) (Table) .
8
misconduct.6 PFR File, Tab 1 at 5 ; ID at 14. We interpret th is assertion as an
argument that the administrative judge erred in sustaining the AWOL charge.
Because the first charge regarding the appellant’s statements to the responder is
sufficient to sustain his removal, we find i t unnecessary to reach this issue of
whether the agency proved its AWOL charge. See Gray , 111 M.S.P.R. 184, ¶ 17
(finding it unnec essary to address the appellant’s arguments as to one of the
charges because the other sustained charges warrant ed the penalty of removal ).
Because we do not address this charge, it is appropriate for purposes of assessing
the penalty to treat this as a case in which not all charges are sustained . Id.
The penalty of removal is within the bounds of reasonableness based on the
sustained charge.
¶16 When an agency proves fewer t han all of its charges, the Board may
mitigate to the maximum reasonable penalty so long as the agency has not
indicated either in its final decision or during proceedings before the Board that it
desires that a lesser penalty be imposed on few er charges. Gray , 111 M.S.P.R.
184, ¶ 18. The Board may impose the same penalty imposed by the agency based
on a justification of that penalty as the maximum reasonable penalty after
balancing the mitigating factors . Id.; see Robinson v. Department of Veterans
Affairs , 923 F.3d 1004 , 1016 -17 (Fed. Cir. 2019) (stat ing that in an appeal where
not all of the charges are sustained, “the Board functions to determine whether or
not the agency ’s penalty selection was reasonable i n light of the sustained
charge []”).
¶17 In his decision notice, the deciding official stated that he believed each
charge, standing alone, was sufficient to warrant the appellant’s removal. IAF,
Tab 7 at 22. The deciding official came to this conclusion after considering all of
the appropriate factors. Id. at 19 -27; see Douglas v. Veterans Admi nistration ,
5 M.S.P.R. 280 , 305 -06 (1981) (providing a nonexhaustive list of factors relevant
6 To the extent that the appellant is raising an enforced leave claim for the first time on
review , we decline to consider it. See Banks , 4 M.S.P.R. at 271.
9
to determining the appropriateness of a penalty for misconduct) . Beyond his
dispute of the charges, the appellant did not make any argument regarding
mitigation, either below or on review. ID at 22; PFR File, Tab 1.
¶18 We agree with the deciding official that the appellant’s sustained conduct o f
making statements that resulted in anxiety and disruption in the workplace was
serious . IAF, Tab 7 at 21; see Gray , 111 M.S.P.R. 184, ¶¶ 11, 19-21 (finding that
charges of making statements that caused anxiety and disruption in the workplace
and using racially inappropriate language were sufficient to sustain a removal) ;
Stoddard v. Department of the Army , 109 M.S.P.R. 199, ¶¶ 2, 10 (2008) (finding
removal an appropriate penalty for an appellant charge d with creating a
disturbance by im plying he would inflict bodily harm on his supervisor and
coworke rs). The deciding official found that removal was within the
recommended range of penalties for the sustained charge and was consistent with
the agency’s growing concern with preventing work place violence . IAF, Tab 7
at 22. Further, he considered the appellant’ s 5 years of service and acceptable
performance. Id. at 21 . Nonetheless, in light of the seriousness of the charge, he
found that removal was appropriate. Id. at 22. We therefore find that the
deciding official considered the Douglas factors most relevant to this case and
that the agency reasonably exercised its management discretion. Accordingly, we
find that the penalty of removal is within the tolerable limits of reasonableness
for the charge of making statements that resulted in disruption and anxiety in the
workplace .
We decline to address the appellant’s arguments regarding his individual right of
action (IRA) appeal .
¶19 Finally, the appellant previously filed an IRA appeal, which the
administrative judge dismissed as untimely filed. Johnson v. Department of the
Navy , MSPB Docket No. DC -1221 -16-0122 -W-1, Initial Decision at 1 (Oct . 5,
2016). That decision became final after neither party filed a timely p etition for
review. In filing his petition for review, the appellant appears to challenge this
10
determination . PFR File, Tab 1 at 4, 6. The Office of the Clerk of the Board
provided him the opportunity to clarify whether he intended to file a petition fo r
review in his IRA appeal . PFR File, Tab 4. The appellant was informed that if he
failed to do so, the Board might assume that he did not intend to file a petition for
review of his IRA appeal. Id. at 2. The appellant failed to respond to the Office
of the Clerk of the Board’s order. Accordingly, we decline to address the
appellant’s assertions appearing to relate to his IRA appeal. PFR File, Tab 1
at 4, 6.
¶20 Accordingly, we affirm the initial decision sustaining the appellant’s
removal , as modified herein .
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 Protection Board does not
provide legal advice on which option is most appropriate for you r 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 yo ur
claims and carefully follow all filing 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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
12
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a 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 described in secti on
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jur isdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Rev iew Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other cir cuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_JEROME_W_DC_0752_16_0064_I_1_FINAL_ORDER_2021690.pdf | 2023-04-14 | null | DC-0752 | NP |
3,276 | https://www.mspb.gov/decisions/nonprecedential/ALJINDI_AHMAD_JAMALEDDIN_SF_3443_17_0198_I_1_FINAL_ORDER_2021810.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AHMAD JAMALEDDIN ALJ INDI,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-3443 -17-0198 -I-1
DATE: April 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ahmad Jamaleddin Aljindi , Rocklin, California, pro se.
Katie A. Chillemi , 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 ORD ER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous fin dings 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 dili gence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 app ellant filed the instant appeal concerning his nonselection for the
agency’s Deportation Officer vacancy in it s Los Angeles field office. Initial
Appeal File (IAF), Tab 1 at 3. He alleged that the agency had discriminated
against him based on his race, national origin, and religion by informing him that
he failed the physical fitness examination required for the vacancy announcement.
Id. at 5 -6. He also alleged that the agency had engaged in retaliation “because
[he] submitted a fitness test formal appeal and contacted the Equal Employment
Opportunity Commission and the Department of Homeland Security Inspector
General offices after that.” Id. at 6.
¶3 The administrative judge issued an order explaining the Board’s limited
jurisdiction in the context of nonselections and instructing the appellant to meet
his jurisdictional burden of proof. IAF, Tab 2. In part, the appellant responded
on February 8, 2017, the day after the deadline for doing so, asserting that he had
3
just filed a whistleblower retaliation complaint with the Office of Special Counsel
(OSC) the day before, on February 7, 2017. IAF, Tab 14 at 5. A lthough he
included correspondence concerning the agency denying his request to retake the
fitness exam associated with its vacancy announcement, the appellant did not
submit any evidence of his OSC complaint. Id. at 8 -15.
¶4 The administrative judge issued a decision on February 10, 2017,
dismissing the appellant’s appeal for lack of jurisdiction, without holding the
requested hearing. IAF, Tab 19, Initial Decision (ID). She first recognized that
neither the appellant’s nonselection nor the denial of his r equest to retake the
fitness examination were appealable adverse actions under 5 U.S.C. chapter 75.
ID a t 5. She next recognized that absent an appealable adverse action, the Board
could not address the appellant’s allegations of discrimination. Id. La st, the
administrative judge recognized that the appellant could not establish jurisdiction
in the context of an individual right of action (IRA) appeal because he had just
filed his OSC complaint and he had not yet exhausted his administrative
remedies. ID at 6.
¶5 The appellant has filed a pleading, which we have construed as a petition
for review. Petition for Review (PFR) File, Tab 1. The agency has filed a
response and the appellant has replied. PFR File, Tabs 3, 5. The Clerk of the
Board issued an o rder requesting additional information concerning the
appellant’s OSC complaint and providing him with another opportunity to meet
his jurisdictional burden over the instant case as an IRA appeal , giv en the passage
of time since he alleged ly filed his OSC complaint. PFR File, Tab 6. The
appellant filed a response to the order , as did the agency. PFR File, Tabs 7 -8.
The appellant requested leave to submit another pleading, PFR File, Tab 10, but
that request was denied, PFR File, Tab 6 at 9-10.
¶6 The Boar d’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 ( Fed. Cir. 1985). As the administrative judge
4
correctly recognized, a nonselection is not an appealable adverse action pursuant
to 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512 , 7513(d); Prewitt v. Merit Systems
Protection Board , 133 F.3d 885 , 886 (Fed. Cir. 1998). Additionally, the Board
lacks jurisdi ction to consider the appellant’ s claims of discrimination absent an
otherwise appealable action. See Wren v. Department of the Army , 2 M.S.P.R. 1 ,
2 (1980) (holding that prohibited personnel practices under 5 U.S.C. § 2302 (b)
are not an independent source of Board jurisdiction), aff’d , 681 F.2d 867 (D.C.
Cir. 1982).
¶7 Although a nonselection is not an appealable adverse action under
chapter 75, the Board may address a nonselection in some other contexts. Becker
v. Department of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 5 (2007) (recognizing that
an appellant may challenge his nonselection by some means other than
chapter 75, such as an IRA appeal for whistleblower retaliation, a Veterans
Employ ment Opportuni ties Act of 1998 appeal, or a Uniformed Services
Employment and Reemployment Rights Act of 1994 appeal). Most relevant to
this appeal, the Board may address a nonselection in an IRA appeal. Id.
¶8 To establish jurisdiction in an IRA appeal, an appellant m ust show by
preponderant evidence that he exhausted his remedies before OSC, and make
nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.
§ 2302 (b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016); see Yunus v. Department of
Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).
¶9 An appellant filing an IRA appeal has not satisfied the aforementioned
exhaustion requirement unless he has filed a complaint with OSC and either OSC
has notified him that it was terminating its investigation of his allegations or
120 calendar days have pa ssed since he first sought corrective action. Simnitt v.
5
Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 8 (2010). The substan tive
requirements of exhaustion are met when an appellant has provided OSC with a
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security , 2022 MSPB 8 , ¶ 10. The Board’s jurisdiction over an IRA appeal is
limited to those issues that have been previously raised with OSC, but appellants
may give a more detailed account of their whistleblowing activiti es 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
communications with OSC concerning their allegations. See Baldwin v.
Department of Ve terans Affairs , 113 M.S.P.R. 469, ¶ 8 (2010).
¶10 Below, the administrative judge correctly found that the appellant had not
satisfied the requisite exhaustion element to appeal his nonselection in an IRA
appeal. ID at 6. At that time, the appellant merely alleged that he had filed a
complaint with OSC, without providing any supportive evidence. IAF, Tab 14
at 5. Moreover, the appellant essentially conceded that his Board appeal was
premature because he had just filed his OSC complaint; he had not waited until
either OSC closed his complaint or the passage of 120 days since filing his OSC
complaint to file his Board appeal. Id.
¶11 On review, the appellant submitted a February 14, 2017 letter from OSC’s
Disclosure Unit, which did not explain what his allegations were , but did indicate
that the Disclosure Unit was closing the matter and referring it to OSC’s
Compla ints Examining Unit. PFR File, Tab 5 at 5; see Mason v. Department of
Homeland Security , 116 M.S.P.R. 135 , ¶ 16 (2011) (recognizing that, unlike
OSC’s Complaints Examining Unit, the Disclosure Unit does not review
allegations of prohibited personnel practices, and making a disclosure to the
Disclosure Unit does not satisfy the exhaustion requirement under 5 U.S.C.
§ 1214 (a)(3)). Given the passage of time since the initial decision and, more
importantly, the appellant’s alleged OSC complaint, the appellant was given
another opportunity on review to prove the exhaustion element a nd other
6
jurisdictional requirements for an IRA appeal. PFR File, Tab 6; see Hawkins v.
Department of Commerce , 98 M.S.P.R. 107, ¶¶ 7 -8 (2004) (remanding an IRA
appeal that became ripe while pending on petition for review because OSC
terminated its inquiry and informed the appellant of his Board appeal rights) ; see
also Piccolo v. Merit Systems Protection Board , 869 F.3d 1369 , 1371 (Fed. Cir.
2017) (outlining the requirement that when there is a jurisdictional shortcoming
in an IRA appeal, petitioners are “provided notice of deficiencies before a cl aim
is finally dismissed and an opportunity to cure their pleadings where specific
details are readily available[]”). However, as detailed below , we find that the
appellant still has failed to meet his jurisdictional burden, even though more than
120 days have passed since his OSC complaint.
¶12 The appellant responded to the Clerk of the Board’s jurisdictional order
with a series of unsworn allegations and some documentary evidence that is
largely unexplained. PFR File, Tab 7. In response to the question of what
protected disclosure he made or activity he engaged in, the appellant appears to
allege the following series of events:
March 18, 2016 – the appellant took the fitness exam associated
with the agency’s vacancy announcement but failed the exam due
to unlawful discrimination and “fascism ” on the part of the
examiner;
March 21, 2016 – the appellant contacted the agency, disputing
his failed fitness exam;
April 16, 2016 – a contractor notified the appellant that he would
be allowed to retake the exam;
April 21, 2016 –an agency official who notified the appellant that
he would not be allowed to retake the exam and the prior message
to the contrary was erroneous;
April 22, 2016 – the agency notified the appellant that it reviewed
his failed fitness test and no further action would be taken on his
application; and
April 27, 2016 – the contractor again contacted the appellant to
schedule his fitness exam.
7
Id. at 5 -6. The documentary evidence the appellant submitted supports at least
some of this alle ged timeline. Id. at 24 -30, 37. The appellant also submitted
email correspondence between him and the Department of Homeland Security,
which generally shows that he filed some sort of complaint with the agency’s
Office of Inspector General, but the compl aint was closed without investigation
and referred to the agency’s Office of Professional Responsibility. Id. at 33.
¶13 Most relevant to the exhaustion requirement for his jurisdictional burden of
proof, the appellant submitted correspondence between him a nd OSC. Id. at 9 -12.
However, while the letters from OSC to the appellant do acknowledge the
existence of a complaint being considered by its Complaints Examining Unit,
they do not explain what that complaint entailed. Id. at 9 -11. Separately, the
appe llant included an email to OSC in which he alleged that the agency always
selects other candidates, despite his numerous applications, “because [he]
reported their intentional violations in a blatant challenge to the United States
Constitution.” Id. at 12 . That email indicates that documents were attached, but
it is unclear what those documents were or what they contained.3 Id.
¶14 Because the appellant is pro se, we have construed his filings liberally.
Meln ick v. Department of Housing and Urban Developm ent, 42 M.S.P.R. 93 , 97
(1989), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table). Nevertheless, we are
unable to find nonfrivolous allegat ions, much less preponderant evidence, that he
met the exhaustion requirement. Although the record shows that the appellant did
file a complaint with OSC more than 120 days ago, the record does not establish
what that complaint entailed; it does not show that the complaint was a
3 The appellant’s pleading includes a number of add itional documents that appear
altogether unrelated to his jurisdictional burden in the instant appeal. That evidence
includes correspondence concerning other vacancy announcements, PFR File, Tab 7
at 14-18, 31 -32, 40 -41, his offers to settle the instant a ppeal, id. at 19 -23, a complaint
about the Board’s handling of his appeal, id. at 34 -36, and an unexplained list of
vacancy announcements, id. at 42 -91.
8
reasonably clear and precise claim of protected disclosures or activities that were
a contributing factor to any personnel action. Therefore, we conclude that the
appellant still has not established Board jurisdiction over his cla im as an IRA
appeal.4
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 suc h
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision , you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read c arefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 We have reviewed the relevant legislation enacted during the pendency of this appeal
and find that none impact the outcome.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in fi nal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must sub mit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of y our discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 repr esentative receives this decision before
10
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, s ex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact infor mation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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 EEOC is:
Office 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
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 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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the 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.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent ju risdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U .S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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 | ALJINDI_AHMAD_JAMALEDDIN_SF_3443_17_0198_I_1_FINAL_ORDER_2021810.pdf | 2023-04-14 | null | SF-3443 | NP |
3,277 | https://www.mspb.gov/decisions/nonprecedential/PENA_JOSE_M_CH_0752_16_0046_C_1_FINAL_ORDER_2020968.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE M. PENA, III,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -16-0046 -C-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose M. Pena, III , Louisville, Kentucky, pro se.
Michael A. Suire , Fort Knox, Kentucky, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant h as filed a petition for review of the compliance initial
decision, which denied his petition for enforcement of a settlement agreement
resolving his removal appeal. Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
in the following circumstances: the i nitial 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 t hat, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that 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 correct the disposition of this appeal to find that the petition
was denied and not dismissed , and address the appellant’s new allegation raised
on review, we AFFIRM the compliance initial decision.
BACKGROUND
¶2 The appellant filed an appeal challenging the agency’s removal action.
Pena v. Department of the Army , MSPB Docket No. CH-0752 -16-0046 -I-1, Initial
Appeal File (IAF), Tab 1. While the appeal was pending, the parties entered into
a settlement agreement that resolved the appell ant’s Board appeal and all claims
against the agency related to his removal. IAF, Tab 12 at 5. Under the terms of
the settlement agreement, the agency agreed to amend the appellant’s Standard
Form 50 (SF -50) to state that he was removed for medical inabi lity to perform the
essential functions of his position. Id. The appellant agreed to “accept [this]
remedy” and to “the dismissal of the [appeal] with prejudice.” Id. The appellant
also acknowledged that he c arefully read and understood the terms of th e
agreement, he had an opportunity to consult with a representative, and he
voluntarily signed the agreement . Id. at 6.
3
¶3 In an initial decision, the administrative judge found that the appeal was
within the Board’s jurisdiction and the settlement agre ement was lawful on its
face, freely entered into by the parties and they understood its terms. IAF,
Tab 13, Initial Decision at 1 -2. Accordingly, the administrative judge entered the
agreement into the record for the purposes of enforcement by the Board and
dismissed the appeal as settled. Id.
¶4 The appellant filed a petition for enforcement arguing that he is entitled to
severance pay according “to OPM, MSPB, and Union guidelines ,” and that the
agency erroneously noted on his amended SF -50 that he is n ot entitled to
severance pay. Pena v. Department of the Army , MSPB Docket No. CH-0752 -16-
0046 -C-1, Compliance File (CF), Tab 1 at 5 . The agency responded by asserting
that it had fully complied with the terms of the settlement agreement by amending
the appellant’s SF -50 to state that the basis for his removal was medical inability
to perform the essential functions of his position. CF, Tab 4 at 5. The agency
submitted a copy of the amended SF -50 as proof of compliance. Id. at 10. The
agency argued that the settlement agreement did not include severance pay and
the parties never discussed severance pay during the settlement negotiat ions. Id.
at 5.
¶5 Without holding the hearing that the appellant requested , the administrative
judge issued a compliance initial decision finding the agency in compliance with
the settlement agre ement . CF, Tab 1 at 2, Tab 8, Compliance Initial Decision
(CID) at 4. She found that the appellant did not dispute that the agency had
complied with the agreement by amending his SF -50 to state that his removal was
based on a medical inability to perform . CID at 4. The administrative judge also
found that the ap pellant agreed to waive all claims against the employing agency
relating to his removal, including any right to back pay or a severance package,
and that he provided no authority to support his claim that he was e ntitled to
severance pay under “ OPM, MSPB, and Union guidelines.” Id. The
4
administrative judge further found that the appellant did not allege fraud or
misrepresentation by the agency. Id.
¶6 The appellant has filed a petition for review of the compliance initial
decision. Compliance P etition for Review (CPFR) File, Tab 1. The agency has
not responded to his petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Stasiuk v. Department of the Army , 118 M.S.P.R. 1 , ¶ 5 (2012) . A settlement
agreement is a contract , and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. Whe n, as
here, the appellant files a petition for enforcement of a settlement agreement over
which the Board has enforcement autho rity, the agency must produce relevant,
material, and credible evidence of its compliance with the agreement. Id. Still,
the ultimate burden of proof is on the appellant, as the party seeking enforcement,
to show that an agency failed to fulfill the term s of an agreement. Id.
¶8 The administrative judge found that the agency proved that it complied with
the settlement by amending the appellant’s SF -50 in accord with the terms of the
parties’ agreement, which did not require the agency to provide the appellant with
back pay or severance pay. CID at 4. The appellant does not dispute these
findings on review, and we affirm them. Moreover, the appellant does not allege
a new breach by the agency or identify any error in the administrative judge’s
determination that the agency is in compliance with the parties’ settlement
agreement. Having carefully reviewed the parties’ settlement agreement, the
appellant’s petition for en forcement, the agency’s evidence of compliance, and
the compliance initial decision, we affirm the compliance initial decision as
5
modified to deny the petition for enforcement.3 IAF, Tab 12; CF, Tab 1, Tab 4
at 8-10; CID.
¶9 For the first time on review, the appellant argues that the agency misled him
by failing to inform him that he would not receive severance pay if the agency
amended his SF -50 to reflect that he was removed based on a medical inability to
perform. CPFR File, Tab 1 at 4. He states that th e administrative judge
suggested amending the appellant’s SF-50 to state that his removal was based on
a medical inability to perform so that he could apply for “medical disability, both
sides agreed and that was the end of it.” Id. He also indicates tha t he would have
objected to the amendment if he had known that it would negate his eligibility for
severance pay, and that the agency withheld this information from him. Id.
¶10 When an appellant ’s petition for enforcement “unmistakably” challenges the
validity of the agreement, the Board will treat it as a petition for review .
Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 12 (2009). A party may
challenge the validity of a settlement agreement if he believes that the agreement
is unlawful, involuntary, or the result of fraud or mutual mistake. Hinton v.
Department of Veterans Affairs , 119 M.S.P.R. 129 , ¶ 4 (2013). Here, the
appellant’s allegations on review are not sufficient for us to find that he is
“unmistakably” challenging the validity of the agreement i n his petition for
enforcement . See Miller , 112 M.S.P.R. 689 , ¶ 12 (finding that an ap pellant’s
allegations that she and her attorney had overlooked the agency’s revisions to a
settlement agreement was at most an allegation of unilateral mistake by her and
her attorney in accepting the agency’s revisions to the draft agreement) ;
Hazelton v. Department of Veterans Affairs , 112 M.S.P.R. 357 , ¶¶ 5, 9, 11 (2009)
3 Although the administrative judge stated that she dismissed the petition for
enforcement, her analysis reflects that she denied the petition on the merits. CID at 5.
We therefore modify the initial decision to find that she denied the petition for
enfor cement. See Wofford v. Department of Justice , 115 M.S.P.R. 367 , ¶¶ 16-17 (2010)
(correcting the disposition of a petition for enfo rcement from “dismissed” to “den[ied]”
when the administrative judge made a decision on the merits of the petition).
6
(finding an appellant’s claim that the agency induced him into agreeing to resign
with incorrect assurance s during settlement negotiations that he would be able to
retire was an unmistakable challenge to the validity of the settlement agreement ).
The appellant does not seek to invalidate the settlement agreement , allege the
agency made an y assurance that he would receive severance pay that induced him
to settle , or suggest that he made inquiries regarding severance pay before signing
the agreement . See Schwartz v. Department of Education , 113 M.S.P.R. 601 , ¶ 10
(2010) (finding an appellant’s statement that accurate retirement information
would have “affected [his] thinking about settlement” did not constitute an
allegation that accurate retirement information would have caused him not to
settle). Thus, we do not inter pret the appellant’s new allegations on review as a
challenge to the validity of the settlement agreement.4
¶11 Accordingly, we find that the administrative judge properly denied the
appellant’s petition for enforcement .
NOTICE OF APPEAL RIG HTS5
The compliance 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 decisi on. 5 U.S.C. § 7703 (a)(1). By statute, the
nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the
following summary of available appeal rights, the Meri t Systems Protection
4 If the appellant intends to challenge the validity of the settlement agreement , he may
do so by filing a petition for review in Pena v. D epartment of the Army , MSPB Docket
No. CH -0752 -16-0046 -I-1. However, we do not address the timeliness of any petition
for review that may be filed in that matter. See Hazelton , 112 M.S.P.R. 357 , ¶¶ 9-10
(2009) (discussing the requirement to file a timely petition for review or show good
cause for the delay).
5 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.
7
Board does not provide legal advice on which option is most appropriate for your
situation an d the rights descri bed below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow al l filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one appl ies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
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 attorney will accept representation in a given case.
(2) Judicial or 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 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,
9
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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
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 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.
10
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PENA_JOSE_M_CH_0752_16_0046_C_1_FINAL_ORDER_2020968.pdf | 2023-04-13 | null | CH-0752 | NP |
3,278 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_DANIEL_P_PH_0752_16_0127_I_3_FINAL_ORDER_2021012.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL P. DAVIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-0752 -16-0127 -I-3
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph J. Chester , Esq uire, Pittsburgh, Pennsylvania, for the appellant.
Daniel E. Ellenbogen , Esquire, Arlington, Virginia, for the agency.
Thao T. Pham , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vic e 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
sustained h is indefinite suspension . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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).
BACKGROUND
¶2 The appellant was the Postmaster of Pittsburgh , Pennsylvania . Davis v.
U.S. Postal Service , MSPB Docket No. PH -0752 -16-0127 -I-1, Initial Appeal File
(IAF), Tab 5 at 50. In December 2014, the agency’s Office of Inspector General
(OIG) initiated an investigation into alleg ations that the app ellant had opened
Express Mail packages , without authorization , at post offices in the Pittsburgh
area. IAF, Tab 4 at 70 . On June 29, 2015, one of the OIG investigators presented
his findings to detec tives from the Allegheny District Attorney’s Office. IAF,
Tab 5 at 10. The detectives then interviewed various Postal Service employees
who had witnessed the appellant’s alleged misconduct. Id.
¶3 On September 15, 2015, the appellant was arrested and charged with four
counts of intimidation of witnesses or vi ctims , four counts of criminal coercion,
3
four counts of official oppression, and one count of obstructing the administration
of law or other Government function. Id. at 5 -48. The four counts of
intimidation were felony charges and the remaining counts we re misdemeanor
charges. Id. Each charge was punishable by imprisonment. IAF, Tab 4 at 35 -36.
The charges alleged that the appellant threatened and/ or intimidated subordinate
employees who had observed him opening Express Mail packages in violation of
Federal law and agency regulation s, and/or directed them not to report his actions
and not to cooperate with law enforcement investigations of his actions . Id.
Following a September 30, 2015 preliminary hearing, a Magisterial District Judge
ordered the appellant to stand trial on all charges. Id. at 51-65.
¶4 On October 20, 2015, the agency proposed the appellant’s indefinite
suspension based on reasonable cause to believe that he was guilty of a crime
punishable by imprisonment. Id. at 35 -38. The appel lant responded to the
proposal both orally and in writing. Id. at 26 -33. Effective November 27, 2015 ,
the agency indefinite ly suspen ded the appellant pending the disposition of the
criminal charges and any resulting administrative action . Id. at 20 -24.
¶5 The appellant filed a Board appeal of the indefinite suspension and
requested a hearing. IAF, Tab 1 at 2. The administrative judge twice dismissed
the appeal without prejudice pending the resolution of the criminal charges
against the appellant , and the appeal was automatically refiled following each
dismissal . IAF, Tab 24, Initial Decision ; Davis v. U.S. Postal Service , MSPB
Docket No. PH -0752 -16-0127 -I-2, Appeal File, Tab 1, Tab 7, Initial Decision ;
Davis v. U.S. Postal Service , MSPB Docket No . PH -0752 -16-0127 -I-3, Appeal
File (I -3 AF) , Tab 1.3
3 In January 2017, shortly before this appeal was r efiled a second time, a jury convicted
the appellant of 6 of the 13 counts against him. I -3 AF, Tab 10 at 18 -19. In April
2017, he was sentenced to 5 years’ probation. Id. at 21 -22. The agency subsequently
removed the appellant for improper conduct and his removal appeal is pending before
4
¶6 Following a hearing, t he administrative judge issued a n initial decision
affirming the agency’s action . 1-3 AF , Tab 32, Initial Decision (ID) at 1, 10 .
The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency has filed a response in opposition to the petition for review.
PFR File, Tab 3.
ANALYSIS
The administrative ju dge properly sustained the indefinite suspension .
¶7 To establish that an indefinite suspension is valid, the agency must show th e
following: (1) it imposed the suspension for an authorized reason; (2) the
suspension has an ascertainable end, i.e., a determinable condition subsequent
that will bring the suspension to a conclusion; (3) the suspension b ears a nexus to
the efficiency of the service; and (4) the penalty is reasonable. Henderson v.
Department of Veterans Affairs , 123 M.S.P.R. 536, ¶ 5 (2016), aff’d , 878 F.3d
1044 (Fed. Cir. 2017). One of the authorized circumstances for imposing an
indefinite suspension is when the agency has reason able cause to believe an
employee has committed a crime for which a sentence of imprisonment could be
imposed. Id. The appellant argues on review, as he did below, that the agency
did not have such reasonable cause and that it also failed to satisfy the third and
fourth criteria. PFR File, Tab 1 at 6; I -3 AF, Tab 31. We disagree.
Reasonable Cause :
¶8 The administrative judge found that the Magisterial District Judge’s
determination that there was sufficient evidence to order the appellant to stand
trial on all 13 charges established more than adequate evidence to meet the
threshold requirement of reasonable cause. ID at 6 (citing Dunnington v.
Department of Justice , 956 F.2d 1151 , 1157 (Fed. Cir. 1992)). The appellant
the Board on review . Davis v. U.S. Postal Service , MSPB Docket No. PH -0752 -17-
0388 -I-1, Petition for Review File , Tab 1.
5
seems to challenge this finding on review, reiterat ing his argument from below
that the agency failed to meet th e reasonable cause requirement because his
criminal prosecution was “replete with harmful procedura l error.” PFR File,
Tab 1 at 6; I -3 AF, Tab 31 at 6. The administrative judge rejected this argument
in the initial decision, correctly finding that the appellant’s claim of procedural
irregularities in connection with his criminal prosecution is immater ial to the
issue in the appeal, the validity of the agency’s indefinite suspension. ID at 6
(citing Rhodes v. Merit Systems Protection Board , 487 F.3d 1377 , 1380 (Fed. Cir.
2007) (holding that “[a]n 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”)). The appellant’s reiteration of
his ar gument that the agency failed to prove reasonable cause is essentially mere
disagreement with the administrative judge ’s explained findings, which does not
establish a basis for review. See Broughton v. Department of Health and Human
Services , 33 M.S.P.R. 357, 359 (1987) ( finding that mere reargument of issues
already raised and properly resolved by the administrative judge below does not
establish a basis for review).
¶9 The U.S. Court of Appeals for the Federal Circuit has found that a formal
judicial determination made following a preliminary hearing usually provides
“more than enough evidence” of possible misconduct to meet the thresh old
requirement of reasonable cause to suspend. See Dunnington , 956 F.2d at 1157.
Therefore, g iven the Magisterial District Judge’s order directing the appellant to
stand trial on felony and misdemeanor charges, each of which is punishable by
imprisonment, the agency clearly had reasonable cause to believe that the
appellant had committed a crime for which a sentence of imprisonment could be
imposed.
Ascertainable End :
¶10 The appellant does not challenge the adminis trative judge’s finding that the
indefinite suspension had an ascertainable end, and we agree with that finding.
6
PFR File, Tab 1; ID at 7. The Board has held that an indefinite suspension may
be continued after criminal charges are resolved if the agency has provided
advance notice of possible administrative action in the suspension proposal or
decision notice and takes action within a reasonable time after the criminal
proceedings are concluded . Camaj v. Department of Homeland Security ,
119 M.S.P.R. 95 , ¶ 11 (2012). The appellant’s indefinite suspension ha d an
ascertainable end because the agency stated in the decision letter imposin g the
suspension that the suspension would end following disposition of the criminal
charges against the appellant, followed by the expiration of a reasonable amount
of time while the agency decided the appropriate administrative action to take
based on th e disposition of the criminal charges. IAF, Tab 4 at 23. Moreover,
the agency terminated the appellant’s indefinite suspension effective February 27,
2017, approximately 6 weeks after his conviction. I-3 AF, Tab 22 at 4.
Nexus :
¶11 The administrative judge found that , given the nature of the criminal
charges against the appellant, it is clear that the agency established a nexus
between the criminal charges and the efficiency of the service . ID at 7 -8. The
appellant challenges this finding on review, reiter ating his argument from below
that the agency could not prove nexus due to the “non -public nature of [his]
actual administrative duties” and the lack of any “competently proven” media
disclosure. PFR File, Tab 1 at 6 ; IAF, Tab 31 at 5 .
¶12 This argument is un availing. Contrary to the appellant’s assertion, his
alleged misconduct was disclosed by the media, as it was the subject of multiple
news reports that identified him as a Postmaster for the agency . IAF, Tab 4
at 40-49; see Jones v. Government Printing O ffice , 13 M.S.P.R. 365, 369 (1982)
(affirming the administrative judge’s conclusion that nexus was shown because
the appellant’s continued presence in the workplace would affect the agency’s
reputation, given that the pending criminal action against her received widespread
notoriety) . Further, as the administrative judge noted , the four felony counts of
7
witness intimidation were based on the appellant’s interactions with four
subordinate employees . ID at 7 -8; IAF, Tab 5 at 6, 15, 24, 33. Consequently, the
administrative judge found, and we agree, that the appellant’s actions adversely
affected his coworkers’ job performance. ID at 8. The administrative judge also
correctly found that the appellant’s conduct adversely affected t he agency’s trust
and confidence in the appe llant, as well a s the agency’s mission. Id. Given these
circumstances, we agree with the administrative judge that there is a nexus
between the appellant’s alleged criminal conduct and the efficiency of the
service.
Penalty :
¶13 On review, t he appellant argues that, in finding that an indefinite
suspension was a reasonable penalty, the administrative judge failed to accord
sufficient weight to his 14 years of service with the U.S. Marine Corps, his heroic
and honorable military service, and h is 20 years of “exemplary service” with the
agency. PFR File, Tab 1 at 6. 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 r easonableness. Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 306 (1981). Relevant factors include
the nature and seriousness o f the offense and its relation to the e mployee’s duties;
the employee’s past disciplinary record; the employee’s past work record,
including length of service and performance on the job; and the effect of the
offense upon supervisors’ confidence in the emp loyee’s ability to perform his
assigned duties . Id. at 305 -06. Not all of the factors will be pertinent in every
instance, and so the relevant factors must be balanced in each case to arrive at the
appropriate penalty. Id. at 306. The Board will modify a penalty only when it
finds that the agency failed to weigh the relevant factors or that the agency
clearly exceeded the bounds of reasonableness in determining the penalty. Id.
¶14 The decision letter and the deciding official’s hearing testimony, as
summarized in the initial decision, demonstrate that he considered the relevant
8
Douglas factors in making his penalty determination, including the nature and
seriousness of the offense and its relation to the ap pellant’s duties . IAF, Tab 4
at 22; ID at 8-9. In that regard, t he deciding official found that the criminal
charges against the appellant were serious and bore directly and substantially on
his employment. IAF, Tab 4 at 22 . The deciding official also considered the
publicity surrounding the criminal charges, and his loss of confidence in the
appellant’s ability to continue working in any capacity. Id.; ID at 9 (citing I -3 AF
(hearing testimony of the deciding official) ). The deciding official considered the
appellant’s lengthy service, the absence of prior discipline, and his acceptable
performance prior to his arrest as mitigating factors , but found that th ey were
insufficient to outweigh the seriousness of the criminal ch arges . IAF, Tab 4
at 22.
¶15 In the initial decision, t he administrative judge found that the penalty of
indefinite suspension was reasonable because the charges against the appellant
were serious and directly related to his duties as Postmaster. ID at 9.
Recognizing that the Board must accord proper deference to the agency’s primary
discretion in managing its workforce, we see no reason to disturb this finding.
See Douglas , 5 M.S.P.R. at 306. Thus, we agree with the administrative judge
that the agency es tablished all the elements necessary to sustain the appellant’s
indefinite suspension. ID at 5 -10.
The appellant has failed to show that the administrative judge abused her
discretion in her discovery and witness rulings .
¶16 On review, t he appellant contends that the administrative judge improperly
denied his motion to compel discovery, including his motion to compel the
depositions of five agency employees . PFR File, Tab 1 at 5; I-3 AF, Tabs 4 -6, 9.
He also argues that the administrative judge erred in only partially granting his
motion to compel the deposition of the OIG agent who provided law enforcement
officials with information about the appellant, and in severely limiting the agent’s
deposition and tria l testimony. PFR File, Tab 1 at 5 ; I-3 AF, Tab 9. He further
9
alleges that the administrative judge improperly denied six of his eight witness
requests. PFR File, Tab 1 at 5; I-3 AF, Tab 12 at 5 -6, Tab 15 at 3.
¶17 An administrative judge has wide discretion to exclude evidence and
witnesses when it has not been shown that such evidence and testimony would be
relevant, material, and nonrepetitious. Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 42 (2014); see 5 C.F.R. § 1201.41 (b)(3), (6), (10). The
Board will not reverse an administrative judge’s rulings on discovery matters,
including a motion to compel, absent an abuse of discretion. Fox, 120 M.S.P.R.
529, ¶ 42.
¶18 Based on our review of the record, we find that the appellant has not shown
the administrative judge abused her discretion in denying his motion to compel or
his witness requests. In his petition for review, t he appellant merely asserts that
the administrative judge erred in denying his motion to compel ; he does not
specify why he believes the administrative judge abused her discretion in denying
that motion. PFR File, Tab 1 at 5. As for the administrative judg e’s witness
rulings, the administrative judge denied six of the appellant’s eight witness
requests based on her finding that the proposed witnesses would not provide
relevant testimony. I -3 AF, Tab 15 at 3. The appellant has not show n that any of
the exc luded witnesses would have provided testimony that was relevant,
material, or nonrepetitious. Thus, we find no basis to reverse the administrative
judge’s rulings.
¶19 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or 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 an y 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 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
14
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 | DAVIS_DANIEL_P_PH_0752_16_0127_I_3_FINAL_ORDER_2021012.pdf | 2023-04-13 | null | PH-0752 | NP |
3,279 | https://www.mspb.gov/decisions/nonprecedential/SMITH_LESTER_L_PH_0752_17_0145_I_1_FINAL_ORDER_2021019.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LESTER L. SMITH, SR .,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-0752 -17-0145 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lester L. Smith, Sr. , Boston, Massachusetts, pro se.
Wendy I. Provoda , Windsor, Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a pe tition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction . On petition for review,
the appellant essentially argues that the Board has jurisdiction over his appeal
because he was an employee as defined by 5 U.S.C. § 7511 (a)(1)(B)(ii ), the
merits of his termination , that his termination was motivated by racial animus and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
in reprisal for filing equal employment opportunity complaints , that the agency
did not apprise him of his Board appeal rights , and that he was entitled to
reinstatement under the terms of the collective bargaining agreement.2 Petition
for Review (PFR) File, Tabs 1, 4. In support, the appellant submits two
documents —an apparent sche dule reflecting his reassignment to a “PTF” position
after the expiration of his temporary appointment and a Postal Service Form 50
effecting a within grade increase in May 2017 . PFR File, Tab 1 at 9, Tab 4 at 10.
¶2 Generally, we grant petitions such as thi s 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 m aterial
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review a nd AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
2 The appellant has filed multiple requests to withdraw his petition for review. Petition
for Review ( PFR ) File, Tab 8 at 2, Tab 11 at 2 -3, Tab 13 at 1 -2. Altho ugh the appellant
confirmed that he was voluntarily withdrawing his petition with prejudice in his
submissions , he also indicated that his request was limited to the “Merits” of his appeal
and appeared to continue to request Board review of his petition. PFR File, Tab 11
at 2-3, Tab 13 at 1-2. An appellant’s relinquishment of his right to appeal to the Board
must be by clear, unequivocal, and decisive action . Carson v. Department of the Army ,
118 M.S.P.R. 58 , ¶ 5 (2012). We deny the appellant’s request because he has not
clearly and unequivocally manifested an intent to withdraw his petition for review.
3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision tha t provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to f ile petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive t o November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SMITH_LESTER_L_PH_0752_17_0145_I_1_FINAL_ORDER_2021019.pdf | 2023-04-13 | null | PH-0752 | NP |
3,280 | https://www.mspb.gov/decisions/nonprecedential/GUTHRIE_KEITH_CH_0752_16_0212_I_1_FINAL_ORDER_2021042.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEITH GUTHRIE, SR .,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -16-0212 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jill C. Beck , Kansas City, Missouri, for the appellant.
Michael E. Anfang , Kansas City, 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
sustained his removal . Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
following circumstances: the initial decision contains erroneous findings of
material fac t; 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 wer e not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not availa ble when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 meet his burden to pr ove that
race was a motivating factor in his removal, we AFFIRM the initial decision ..
¶2 As further detailed in the initial decision, the appellant most recently held a
Motor Vehicle Operator position . Initial Appeal File (IAF), Tab 27,
Initial Decision (ID) at 1 -2. The agency proposed his removal based on a single
charge of inappropriate conduct, with six accompanying specifications. ID
at 2-3; IAF, Tab 4 at 72 -73. In short, those specifications alleged that , between
August and October of 2015, the ap pellant (a) drove recklessly and too fast with a
veteran passenger on two occasions , (b) struck another vehicle while driving a
veteran and failed to check on the other vehicle’s passengers , (c) struck a stop
sign and failed to check for damage or report t he incident , (d) struck a tree branch
and damaged a vehicle’s mirror , (e) put gasoline in a diesel vehicle , and (f) drove
on a suspended license on one date . IAF, Tab 4 at 72. After the appellant
responded to the proposal, the deciding official upheld the removal, effective
January 8, 2016. ID at 3; IAF, Tab 4 at 86 -90.
¶3 The appellant challenged his removal in the instant appeal, raising race and
age discrimination affirmative defenses. IAF, Tab s 1, 21. After holding the
3
requested hearing, the adminis trative judge found that the agency met its burden
of proving specifications (a) -(e)3 and the inappropriate conduct charge, generally.
ID at 4 -11. She also found that the agency met its burden of establishing nexus
and the reasonableness of the penalty. ID at 11 -14. Finally, the administrative
judge found that the appellant did not prove either of his affirmative defenses. ID
at 14 -18. Accordingly, the administrative judge sustained the appellant’s
removal. ID at 18. The appellant has filed a petiti on for review. Petition for
Review (PFR) File, Tab 1. The agency has filed a response , and the appellant has
replied. PFR File, Tabs 3 -4.
¶4 On review, the appellant first challenges the administrative judge’s findings
concerning specification (c), that he struck a stop sign on October 22, 2015, and
failed to check for damage or report the incident. PFR File, Tab 1 at 4. To find
that the agency met its burden of proving this specification, the administrative
judge relied on the testimony of another motor vehicle operator who witnessed
the incident and her contemporaneous report on the matter. ID at 7 -8. However,
as the appellant rightly notes, the administrative judge referred to the wrong
report. PFR File, Tab 1 at 4; ID at 7 -8 (citing IAF, Tab 4 at 32 -33). The
administrative judge mistakenly referred to a police report pertaining to a
different accident and specification, rather than the witness report concerning the
appellant’s striking a stop sign. Compare IAF, Tab 4 at 32 -33, with id . at 39-40.
Nevertheless, we find the error harmless. See Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984) (explaining that an adjud icatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversing an
initial decision).
¶5 Despite the administrative judge’s reference to the wrong piece of evidence,
the record does contain a contemporaneous witness rep ort pertaining to
3 The administrative judge did not sustain specific ation (f), concerning the appellant
driving on a suspended license, because the appellant was initially unaware of the
suspension and acted appropriately after learning of it. ID at 10.
4
specification (c), signed by both the witness and a police officer, corroborating
the allegation that the appellant hit a stop sign on the date in question. IAF,
Tab 4 at 39 -40. The statement the witness provided in that contemporaneous
report is consistent with her testimony at the hearing. Id.; IAF, Tab 26, Hearing
Compact Disc (HCD) (testimony of the motor vehicle operator). Although the
appellant disputes that witness ’ testimony, he has failed to provide sufficiently
sound reasons for us to overturn the administrative judge’s conclusion that her
testimony was more credible than the appellant’s. ID at 7 -8; see Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (recognizing that the
Board must give credibility -based determinations deference and may only
overturn an administrative judge’s explicit or implicit demeanor -based credibility
findings when it has “ sufficiently sound” reasons for doing so). Accordingly, we
discern no basis for disturbing the administrative judge’s findings concerning
proof of this specification, the others she sustained, or the charge, generally.4
¶6 The appellant next references and a ttaches various provisions of 5 U.S.C.
chapter 43, arguing that the agency committed a number of errors in addressing
his conduct. PFR File, Tab 1 at 4 -13. For example, the appellant asserts that the
agency previously rated him as “fully successful” and failed to give him an
opportunity to correct his performance after notifying him of the specifications .
Id. at 4-5. He also asserts that the agency neglected to list the critical elements
he failed to meet. Id. at 5. These arguments are unavailing. Th ey mistakenly
conflate the appellant’s chapter 75 removal with a performance -based action
under chapter 43. Compare Hall v. Department of Defense , 117 M.S.P.R. 687 ,
¶ 6 (2012) (explaining the elements of a chapter 75 adverse action appeal,
including proof of an agency’s charge s, nexus, and the reasonableness of its
penalty), with Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 5
4 Although the appellant disputes specification (c), he admits to the pertinent facts
underlying specifications (b), (d), and (e) and provides no substantive arguments
concerning specification (a) on review. E.g., PFR File, Tab 1 at 7.
5
(2010) (explaining t he elements of a chapter 43 performance -based action,
including the requirements that an agency communicate to the appellant the
critical elements of his position, warn him of his performance inadequacies, and
provide a reasonable opportunity to improve). Even if the agency c ould have
pursued a performance -based action under chapter 43, it was not required to do
so. Lovshin v. Department of the Navy , 767 F.2d 826 , 843 (Fed. Cir. 1985)
(recognizing that an agency may rely on either chapter 75 or chapter 43 to take a
performance -based action).
¶7 Mixed with his arguments that mistakenly implicate the requirements of
chapter 43, the appellant referenc es provisions of an alleged “Master Agreement”
and agency handbook. PFR File, Tab 1 at 4 -6. In doing so, he appears to
implicate an affirmative defense of harmful error. See 5 U.S.C. § 7701 (c)(2 )(A)
(providing that an adverse action may not be sustained if the employee “shows
harmful error in the application of the agency’s procedures in arriving at such
decision”). However, it appears that the appellant failed to clearly articulate any
such cla im below. IAF, Tab 21 at 4. Therefore, to the extent that he is now
asserting harmful error, we will not address it for the first time on review. See
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (recognizing
that the Board generally will not consider an argument raised for the first time in
a petition for review absent a showing that it is based on new and material
evidence not p reviously available despite the party’s due diligence).
¶8 In his petition, the appellant also reasserts that he suffered age
discrimination, one of the affirmative defenses he did raise below.5 PFR File,
5 The appellant does not re -raise his race discrimination claim. We agree with the
administrative judge’s well -reasoned conclusion that the appellant failed to present any
evidence to support this claim. ID at 14 -17. To the extent that she stated that the
appellant did not prove a “convincing mosaic” of discrimination, ID at 17, we modif y
the initial decision to find that the appellant failed to meet his burden to prove that race
was a motivating factor in his removal, Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 , ¶¶ 28 -31 (2016 ) (explaining that the previously used phrase
“convincing mosaic” was not meant to impose a new, separate legal requirement, but
6
Tab 1 at 7; IAF, Tab 21 at 4. The administrative j udge found that , although the
appellant alleged that he was treated differently on the basis of his age, he failed
to present any supportive evidence. ID at 17 -18. On review, the appellant alleges
that he “suffered age discrimination for the mere fact th at he was terminated
before he turned 65 when he would be eligible for an unreduced retirement.”
PFR File, Tab 1 at 7. He further asserts that “[i]n this situation, age
discrimination is about the appellant wanting and deserving to be fully vested at
age 65, it’s not about his age being compared to a colleague.” Id. These
assertions do not warrant a different result. The appellant has failed to meet his
burden of proving that his age was a motivating factor in his removal. See
Babb v. Wilkie , 589 U.S. ___, 140 S. Ct. 1168 , 1173 -76 (2020) (interpreting
29 U.S.C. § 633a (a) as expressly imposing liability if the appellant shows that age
discrimination played a part in the agency’s action ); Gardner v. Department of
Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 28 -30 (2016) (explaining that an
affirmative defense of discrimination under 42 U.S.C. § 2000e -16 requires that an
appellant first show by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel action) , clarified by Pridgen v.
Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23 -24.6
¶9 The appellant lastly suggests that removal was not a reasonable penalty for
his conduct. PFR File, Tab 1 at 7. He points to “the absence of intentionality and
malicious intent, as well as a lack of extensive damage.” Id. We find no merit to
the argument.
finding that despite an administrative judge’s use of this phrase, she properly
consider ed the evidence as a whole in finding that the appellant failed to prove her
Title VII affirmative defenses) , clarified by Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 23 -24.
6 Because the appellant failed to meet his initial burden to prove that his race or age
was a mot ivating factor in the agency’s decision, we need not reach the question of
whether discrimination was a “but -for” cause of the agency’s decision. See Pridgen ,
2022 MSPB 31 , ¶¶ 20-22.
7
¶10 When, as here, all of the agency’s charges are sustained, but one of the
underlying specifications is not, the agency’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within the
parameters of reasonableness. Parker v. U.S. Postal Service , 111 M.S.P.R. 510 ,
¶ 8, aff’d , 355 F. App’x 410 (Fed. Cir. 2009). In applying this standard, the
Board must take into consideration the failure of the agency to sustain all of its
supporting spe cifications. Id. Even when conducting such review, the Board’s
function is not to displace management’s responsibility or to decide what penalty
it would impose but to assure that management’s judgment has been properly
exercised and that the penalty doe s not exceed the bounds of reasonableness. Id.,
¶ 9. Thus, the Board will modify a penalty only when it finds that the agency
failed to weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id.
¶11 As the administrative judge recognized, the agency properly considered the
relevant factors when determining that removal was appropriate. ID at 11 -14;
HCD (testimony of the deciding official); IAF, Tab 4 at 72 -76, 86 -87. Among
other things, the agency noted that , even though the appellant had not acted with
malice, he had exhibited an increasing pattern of unsafe driving, with a lack of
regard for the well -being of veterans the agency served. HCD (testimony of the
deciding official); IAF, Tab 4 at 72 -76, 86 -87. As a result, the agency concluded
that he could not be depended on to perform his duties conscientiously or safely.
HCD (testimony of the deciding official); IAF, Tab 4 at 72 -76, 86 -87. Like the
administrative judge, we find no basis for disturbing the agency’s chosen penalty;
it does not exceed the tolerable limits of reasonableness, even when considering
the appellant’s arguments concerni ng the lack of malice and extent of damage.
ID at 11 -14.
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 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.
Please read carefully each of the three main possible choices of review
below to 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).
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 w hich option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If 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
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
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 requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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
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, 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.
12
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 | GUTHRIE_KEITH_CH_0752_16_0212_I_1_FINAL_ORDER_2021042.pdf | 2023-04-13 | null | CH-0752 | NP |
3,281 | https://www.mspb.gov/decisions/nonprecedential/COOPER_LARICE_AT_0752_17_0122_I_1_FINAL_ORDER_2021074.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LARICE COOPER,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -17-0122 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marion L. Williams , Warner Robins, Georgia, for the appellant.
Elise Louise Jones and Grant Jensen , Albany, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available wh en the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
recognize and apply the proper standards for the agency’s charge and the
appellant’s disability discrimination claim , we AFFIRM the initial decision.
BACKGROUND
¶2 Prior to the action at issue, the appellant encumbered the position of Tractor
Operator, WG-7. On June 8, 2016, he provided the agency with a memorandum
from his Depa rtment of Veterans Affairs (DVA) doctor stating that the appellant
was no longer able to perform his duties based on MRI results of December 15,
2015, which showed moderate to severe degenerative changes of the cervical
spine. The doctor stated that the a ppellant suffered neck pain that radiate d to his
hands, and that he could perform light duties that did not require him to lift
anything heavy. Initial Appeal File (IAF) , Tab 7 at 19. Subsequently, the agency
proposed and effected the appellant’s removal for “inability to perform as a result
of medical condition.” Id. at 15, 12, 11.
¶3 The appellant filed a Board appeal in which he did not request a hearing.
IAF, Tab 1 . D uring adjudication, he conceded that he c ould not perform his
duties based on the cond ition referenc ed by his DVA doctor. Id.; IAF, Tab 13
at 18-20 (the appellant’s re sponses to the agency’s request for admissions) . He
3
indicated that h e had suffered an on -the-job injury and was waiting for a decision
by the Office of Workers’ Compensation Programs . He also stated that he was
requesting reassignment in lieu of removal or a redesign of his position to exclude
the duties he could no longer perform.3 Id. In addition to challenging the charge,
he stated that he was raising as affirmative def enses disability discrimination
based on f ailure to accommodate, and denial of due process /harmful error
regarding his right to repl y to the proposal noti ce. IAF, Tab 19 at 6-15.
¶4 In his initial decision, the administrative judge first found that the agenc y
proved the charge of inability to perform due to a medical condition by
establish ing that the appellant ’s disabling condition is disqualifying, that its
recurrence cannot be ruled out, and that the duties of the position are such that a
recurrence of the medical condi tion would pose a reasonable probability of
substantial harm . IAF, Tab 24, Initial Decision (ID) at 8-20. The administrative
judge next found that the appellant failed to prove his claim of disability
discrimination based on failure to acco mmodate, ID at 23 -24, and failed also to
prove his claim of denial of due process/harmful error. ID at 25 -28. Lastly, t he
administrative judge found that the agency proved that there was a nexus between
its decision to remove the appellant and the effici ency of the service and that
removal was a reasonable penalty based on the sustained charge. ID at 28.
Accordingly, the administrative judge affirm ed the agency’s action. ID at 1, 28.
¶5 The appellant has filed a petition for review, Petition for Review (P FR)
File, Tab 1, and the agency has filed a response. PFR File, Tab 3.
3 The appellant submitted medical documentation that noted pain and nu mbness in his
hands and wrists, IAF, Tab 15 at 18 -23, and a June 10, 2016 imaging study conducted
on the appellant’s l umbosacral spine showed degenerative disc disease and facet
arthrosis of the lumbar spine , IAF, Tab 14 at 5.
4
ANALYSIS
The administrative judge applied an improper legal standard to the agency’s
charge.
¶6 As noted, the agency removed the appellant based on a single charge of
inability to perform the duties of his Tractor Operator position based on a medical
condition. IAF, Tab 7 at 15, 12. The administrative judge analyzed the charge by
citing to prior Board cases that relied on 5 C.F.R. § 339.206 ,4 finding that the
agency proved the charge by est ablishing that the appellant has a disqualifying
medical condition , and that recurrence , which could not be ruled out , would pose
a reasonable probability of causing substantial harm. ID at 8 -20.
¶7 Though not raised by either party, we modify the initial decision to the
extent that the administrative judge relied on 5 C.F.R. § 339.206 to analyze the
agency’s charge. See 5 C.F.R. § 1201.115 (e) (providing that, although the Board
normally will consider only issues raised by the parties on re view, it reserves the
authority to consider any issue in an appeal before it). As explained below,
section 339.206 does not apply to this appeal because the agency did not remove
the appellant based solely on his medical history , but rather on a current m edical
condition and inability to perform.
¶8 In Haas v. Department of Homeland Security , 2022 MSPB 36, the Board
revisited its precedent concerning a medical inability to perform charge where the
employee occupied a position that was subject to med ical standards.5 The Board
4 5 C.F.R. § 339.206 provides generally that an employee may not be removed from a
position subject to medical standards “solely on the basis of medical history.”
5 The administrative judge in this case found, and we agree, that a preponderance of the
evidence supports the pr oposition that, in his position of Tractor Operator, the appellant
was not subject to medical st andards, but instead was subject to physical requirements.
5 C.F.R. § 339.206 ; ID at 10 -11. Physical requirements are a written description of
job-related physical abilities that are essential for successful performance in a specific
position. 5 C.F.R. § 339.104 . The requir ements must be specifically supported by the
actual duties of the position and documented in the position description. 5 C.F.R.
§ 339.203 (a). Here, a section of the appellant’s position description, entitled “Physical
Effort ,” provides that the incumbent performs work on hard surfaces , in work areas that
5
recognized 5 C.F.R. § 339.206 applies only to removals that are “solely on the
basis of medical history.” Id., ¶¶ 11-12.
¶9 Regardless of whether a position is subject to medical standards or , as here,
physical requ irements , if an agency removes an employee for inability to perform
because of a current medical condition or impairment, the agency must prove
either a nexus between the employee’s medical condition and observed
deficiencies in his performance or conduct, or a high probability, given the nature
of the work involved, that his condition may result in injury to himself or others.
Id., ¶¶ 15 & n.3 , 20. In other words, the agency must establish that the
appellant’s medical condition prevents him from being able to safely and
efficiently perform the core duties of his position. Id., ¶¶ 15, 20.
¶10 In this appeal, the agency did not remove the appellant based solely on his
medical history, b ut rather based on his current medical condition. The proposal
notice cited the appellant’s severe degenerative condition of cervical spine with
neck pain radiating to his hands , which rendered him medically unable to perform
the duties of his job. IAF, Tab 7 at 15. Accordingly, section 339.206 does not
apply.
As modified to apply the correct legal standard, we affirm the administrative
judge’s conclusion that the agency proved its charge.
¶11 Although the administrative judge rendered the initial decision i n this
appeal before the Board issued Haas and, consequently, misapplied 5 C.F.R.
§ 339.206 , remand is unnecessary because the record is fully de veloped on the
relevant issues. Haas , 2022 MSPB 36, ¶ 20.
¶12 The core duties of a position are synonymous with the essential functions of
a position, i.e., the fundamental job duties of the position, not including marginal
require climbing, standing, stooping, bending , and in tiring and uncomfortable
positions, and that the incumbent frequently lifts and c arries supplies and materi als
weigh ing up to 50 pounds , and must be able to work at heights up to 15 feet. IAF,
Tab 23 at 9.
6
functions. Id., ¶ 21. One of the bases for finding that a function is essential is
that it is the “reason the position exists.” Id.; 29 C.F.R. § 1630.2 (n)(2)(i).
¶13 The position description for Tractor Operator provides that the purpose of
the position is to operate heavy -duty tow/push tractors . IAF, Tab 23 at 6 , 4. As
noted, a section of the appellant’s position description, entitled “Physical Effort ,”
provides that the incumbent performs work on hard surfaces and in work areas
that require climbing, standing, stooping, bending and work in tiring and
uncomfortable positions, frequently lifts and carries supplies and materials which
weigh up to 50 pounds, and must be able to work at heights up to 15 feet.
Id. at 9.
¶14 The administrative judge considered the medical records included within
the record of this appeal and found that they suggest that the appellant suffered
from dege nerative changes in his cervical and lumbar spine , which were
sufficiently severe that his own physician opined that the appellant was incapable
of performing the job duties required of him. ID at 15. The administrative judge
further noted that, during t he discovery phase of this proceeding, the appellant
admitt ed that: (1) due to medical conditions, he was unable to climb into or onto
heavy equipment and machinery; (2) due to medical limitations, he was unable to
lift heavy objects; (3) he suffers from pain in his neck that inhibits his ability to
operate heavy machinery; (4) he suffers from pain in his hands that inhibits his
ability to operate heavy machinery; (5) he suffers from pain in his back that
inhibits his ability to operate heavy machinery; ( 6) his primary duties as a Tractor
Operator were to operate heavy equipment; (7) as of June 2016 through the date
he responded to the agency’s discovery requests, he was unable, for medical
reasons, to perform the duties of his position; (8) his medical re cords indicated
that he was unable to perform the duties of his position for medical reasons;
(9) his doctors advised him that he was unable to perform the duties of his
position for medical reasons; (10) he suffered from a cervical spine condition that
prevented him from performing the duties of his position; (11) his cervical spine
7
condition was unlikely to improve in the future; and (12) if he were to resume the
duties of his position, it would worsen his medical conditions. ID at 15-16; IAF,
Tab 13 at 18 -20.
¶15 The administrative judge acknowledged that, i n his response to the agency’s
close of the record submissions, the appellant’s stance regarding his ability to
perform the duties of his position apparently changed . Specifically, the appellant
argued that the agency promoted him to Tractor Operator in the 2009 -2010
timeframe and that his medical condition had not changed since then ; and that he
had difficulties when he had to climb the ladder into the Cat 988. ID at 16. The
appellant argues on review , as he did below, that his medical condition did not
prevent him from performing the duties of his position , and that driving the
Cat 988 was outside the scope of his duties. PFR File, Tab 1 at 12. The
administrative judge found that the preponderance of the evidence did not support
the appellant’s allegation that the agency required him to work outside the scope
of his position description by requiring him to operate the Cat 988 , ID at 17 -19,
but th at, regardless of whether the appellan t worked within the scope of his
position description while operating the Cat 988, the agency established that the
appellant was otherwise unable to perform the duties of his position as a result of
a medical condition. ID at 19. The administrative judge based this finding on
undisputed evidence that : (1) the appellant occupied a position with physical
requirements, including a requirement to work in areas that require climbing and
frequent lift ing and carry ing of supplies and material weighing up to 50 pounds ;
(2) although the memorandum from his doctor did not list a particular weight
lifting restriction, it indicated that the appellant could perform light duties that
would not req uire him to lift anything heavy; and (3) a requirement to frequently
lift and carry items weighing up to 50 pounds would exceed a medical limitation
that precluded an individual from lifting anything heavy. The administrative
judge further found that, b y the appellant’s own admission, climbing into the
Cat 988 was taxing for h im and would cause him pain and that , during discovery,
8
he admitted that he was unable to climb into or onto heavy equipment, that he
suffered from neck, back, and hand pain that inhibited his ability to operate heavy
equipment, and that due to his medical limitations, he was unable to lift heavy
objects. Finally, the administrative judge found that the appellant ’s doctor’s
opinion, as well as the additional medical evidence in the record , and the
presumption that any additional evidence the appellant might have presented
would have supported the agency’s charge of inability to perform,6 all support the
conclusion that the appellant suffered from degenerative medical conditions that
rendere d him unable to perform the duties of his position at the time of his
removal. ID at 19 -20. Because the medical evidence suggest ed that the
appellant’s conditions were permanent and degenerative, and because he admitted
that resuming his duties would wor sen his medical condition , the administrative
judge determined that the agency established by a preponderance of the evidence
that a recurrence of the appellant’s conditions could not be ruled out and that the
duties of the position were such that a recurr ence would pose a reasonable
probability of substantial harm. ID at 20. We find , under the proper framework,
that the agency established that the appellant ’s medical condition prevents him
from being able to safely and efficiently perform the core duties of his position,
and that therefore the agency sustained its charge of medical inability to perform .7
6 During adjudication, the administrative judge imposed sanction s against the appellant
for failing to comply with an order granting the agency’s motion to compel discovery .
They included drawing an adverse inference favoring the agency that any evidence the
appellant might have offered would have supported the agency’s charge. IAF, Tab 17.
The appellant has not challenged t he imposition of that sanction on review.
7 On review, the appellant notes that the agency’s stated legal authority for the removal
action on the Standard Form ( SF) 50 is 5 C.F.R. § 432.101 , a regulatory provision
describing the statutory authority for performance -based reduction -in-grade and
removal actions. 5 U.S.C. chapter 43; PFR File, Tab 1 at 5. Here, it is clear that the
action was taken under chapter 75. While t he SF -50 is docum entation of the action , it
is not the action itself. Fox v. Department of the Army , 120 M.S.P.R. 529 , ¶ 22 (2014)
(stating that, whi le an SF -50 is the customary documentation of a personnel action, it is
not the personnel action itself).
9
¶16 Nevertheless, in determining whether the agency has met this burden, the
Board will consider whether a reasonable accommodation, short of reassignment,
exits that would enable the appellant to safely and efficiently perform those core
duties. Haas , 2022 MSPB 36, ¶ 25. The appellant argued only that the agency
could have accommodated him by eliminating the duties of his position tha t he
was unable to perform, IAF, Tab 1 ; Tab 20 at 21; but, the agency stated that the
appellant’s position could not be redesigned and that, due to his limitations, he
was placed on light duty and temporarily relieved of his responsibilities to
opera te hea vy equipment or machinery, or to perform any associated maintenance
or other physical labor. IAF, Tab 20 at 15 (declaration of deciding official). An
agency is not required to accommodate an individual with a disability by
eliminating the essential funct ions of his position. See, e.g. , Johnson v. U.S.
Postal Service , 120 M.S.P.R. 87, ¶ 10 (2013). W e therefore agree with the
administrative judge that the agency proved that it could not provide a reasonable
accommodation that would enable the appellant to perform the core duties of his
Tractor Operator position. ID at 24.
The appellant failed to meet his burden of proving that he is a qualified individual
with a disability, as that term is defined under the relevant statutes.
¶17 The administrative judge considered but rejected the appellant’s claim that
the agency engaged in disability discrimination. ID at 20 -24. The administrat ive
judge found that the appellant did not prove his failure to accommodate claim
because he was not a qualified individual with a disability. ID at 23 -24. We
modify the administrative judge’s analysis but agree that this claim fails.
¶18 The Board adjudicat es claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Haas , 2022 MSPB 36, ¶ 28. The
Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act ( ADA ), as amended by the Americans with Disabilities Act
Amendments Act of 2008 ( ADAAA ). Id. Ther efore, we apply those standards
10
here to determine if there has been a Rehabilitation Act violation. Id. In
particular, the ADAAA provides that it is illegal for an employer to “discriminate
against a qualifi ed individual on the basis of disability.” 42 U.S.C. § 12112 (a).
A qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or
without reasonab le accommodation. 42 U.S.C. § 12111 (8). An employer is also
required to provide reasonable accommodation to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112 (b)(5). On review, t he appellant
argues without support that he was never disqualified from performing his duties.
PFR File, Tab 1 at 13. To the extent the administrative judge found that the
appellant was disqualified , ID at 20, he did so in his analysis of the merits of the
agency ’s charge . We have found, however, that because the appellant was not
removed solely on the basis of medical history, the agency’s burden is to prove
either a nexus between the e mployee’s medical condition and observed
deficiencies in his performance or conduct, or a high probability, given the nature
of the work involved, that his condition may result in injury to himself or others ,
Haas, 2022 MSPB 36, ¶ 15, and that under that proper framework, the agency
satisfied its burden of proof .
¶19 We agree with the administrative jud ge’s finding that the appellant was not
a qualified individual with a disability because he did not meet the physical
requirements of the position a nd his medical condition precluded him from being
able to perform the dutie s of his position. ID at 23 -24. The appellant ’s
arguments on this point essentially mirror those regarding the agency’s charge,
that is, that he could perform in his position if the agency removed those duties
that he admits he could not perform. As noted , an agency is not required to
accommodate an individual with a disability by eliminating the essential
functions of his position. Johnson , 120 M.S.P.R. 87, ¶ 10.
¶20 The appellant argues on review that the agency failed to engage in the
interactive process. PFR File, Tab 1 at 8 -9. Specifically, he claims that in
11
June 2016 and on September 20, 2016, he submitted “formal request[s] for
accommodation,” but that th e agency did not search for any vacant positions to
which he could be reassigned. Id. at 8. Rather, he asserts, the agency required
him to conduct his own search by applying for jobs on USAjobs.gov. Id. at 9.
The record reflects, as the administrative judge found, that, on June 1, 2016, the
appellant and his union representative met with the Branch Director and a Human
Resources Specialist, the appellant indicated that he suffered from a medical
condition that was affecting his ability to perform his du ties, ID at 2; IAF, Tab 19
at 21, and, promptly thereafter, his supervisor asked the appellant to provide
certain information regarding his condition, including any requested
accommodation, within 15 days. IAF, Tab 19 at 21. There is no evidence that the
appellant replied. On July 20, 2016, the Branch Director again advised the
appellant of his option to request reasonable accommodation, including applying
for vacant positions, and stated that he must respond within 15 days to the
Disability Program Mana ger. ID at 3; IAF, Tab 7 at 17. The appellant did not
respond to the Disability Program Manager, but he did send a memo to the
Branch Chief requesting that his position be redesigned to eliminate the duties he
could not perform. ID at 3; IAF, Tab 19 at 27. In response to the Notice of
Proposed Removal, the appellant requested reassignment to another position,
specifically mentioning that of a Mail Carrier. IAF, Tab 19 at 33. The agency
submitted evidence show ing that there was no longer a Mail Carrier position
within the Division as it had been eliminated years ago, and that there were no
positions, let alone vacant positions, that “we could place [the appellant] in for
which he was qualified and could perform the essential functions with or without
accommodation.” IAF, Tab 20 at 16 (declaration of deciding official). In
addition, the Disability Program Manager sent an email to the proposing and
deciding officials in which he explained that the appellant had indicated to him
that he did not wish to in itiate a job search but rather preferred to remain in a
limited/light duty status. ID at 5; IAF, Tab 19 at 30; IAF, Tab 18 at 14.
12
¶21 Contrary to the appellant’s claim, the record reflects that the agency
engaged in the interactive process with the appellan t prior to issuing a letter of
decision on his proposed removal, including requesting medical information
about the nature of his disability, and that, although he submitted documentation
showing that he was disabled, he failed to identify a vacant funded position to
which he could have been reassigned or provide any other evidence of another
accommodation. Kohl v. Department of the Army , 80 M.S.P.R. 678, ¶ 5 (1999).
We therefore find no support for the appellant’s claim that the agency failed to
engage in the interactive process regarding placing him in a vacant position for
which he was qualified, Miller v. Department of the Army , 121 M.S.P.R. 189,
¶¶ 15, 19 (2014) (finding that the agency engaged in the interactive process in
good faith) , and that therefore he cannot prevail on his claim of disability
discrimination based on the agency’s failure to reasonably accommodate him .
The administrative judge correctly found that the appellant failed to prove that
the agency denied him due process and/or com mitted harmful procedural error
regarding his right to reply to the charge.
¶22 The appellant also argues on review that the administrative judge erred in
finding that the agency did not deny him due process regarding his right to reply
to the charges. PFR Fi le, Tab 1 at 10 -12. The administrative judge found that,
although the appellant did not submit a written response directly to the deciding
official, as directed, he did submit a response to the proposing official, and that
the deciding official did become aware of, and consider, that response in reaching
his decision. ID at 25 -26; IAF, Tab 20 at 16 (declaration of deciding official).
Because the appellant did have an opportunity to submit a written reply, he was
thereby afforded his due process rights an d was not also entitled to make an oral
reply.8 Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 542 -46
8 On review, the appellant appears to suggest that the deciding official had an ex parte
communication with the Branch Director regarding the penalty to be imposed and that
that conversation also resulted in a denial of due process. Ward v. U.S. Postal Service ,
634 F.3d 1274 , 1279 -80 (Fed. Ci r. 2011), Stone v. Federal Deposit Insurance
13
(1985). The administrative jud ge properly went on to consider, however, whether
the agency committed harmful error under 5 U.S.C. § 7701 (c)(2)(a) based on the
appellant’s claim that he was denied the right to make an oral reply . 5 U.S.C.
§ 7513 (b)(2). The administrative judge found that the appellant did not establish
his claim because he did not show that any such error was harmful , that is h e did
not indicate what in formation he would have provided to the deciding official
during such a reply, and he provided no evidence as to what the deciding
official’s reaction likely would have been if provided with whatever additional
evidence or argument the appellant would have presented during his oral reply.
ID at 26 -28. To the extent the appellant argues that he was denied the right to
make an oral reply, he has not shown that the administrative judge erred in
finding no harmful error. Stephen v. Department of the Air Force , 47 M.S.P.R.
672, 682, 685 (1991).9
The administrative judge did not abuse his discretion regarding in adjudicating
this appeal.
¶23 The appellant argues on review that the administrative judge erred or
abused his discretion in requesting additional documentation from the agency
after the close of the record. PFR File, Tab 1 at 13. The administrative judge
explained that, upon reviewing the record in preparation for writing the decision,
he realized that the copy of the appellant’s Tractor Operator position description
that the agency submitted with its response file was incomplete, and so he phon ed
the agency representative and asked him to submit a complete copy of the
document for the record, which he did. ID at 11 n.2. An examination of the
Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999); PFR File, Tab 1 at 12. We have
not cons idered this argument, however, as it is raised for the first time on petition for
review and the appellant has not shown that it is based on new and material evidence
not previously available despite his due diligence. Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 16 (2016).
9 The appellant does not challenge on review the administrative judge’s finding that the
agency establish ed the requisite nexus and reasonableness of its penalty. PFR File,
Tab 1; ID at 28. We discern no error in these findings.
14
agency’s original submission reveals a five-page document, IAF, Tab 7 at 20 -24,
whereas the submission the agency provided in response to the administrative
judge ’s request consists of those same five pages plus two more, the latter of
which includes, inter alia, a section entitled “PHYSICAL EFFORT.” IAF, Tab 23
at 9-10. That both position descriptions bore the same date suggests that the first
one submitted was, in fact, incomplete. As noted, t he content of that section
formed the basis for the administrative judge ’s finding that the appellant’s
position has physical requirements, specifically, lifting and carrying supplies and
materials weighin g up to 50 pounds. ID at 11 -12. Although the appellant
suggests on petition for review that the administrative judge improperly requested
a complete copy of the position description , PFR File, Tab 1 at 13, administrative
judge s are authorized to order th e production of evidence. 5 C.F.R.
§ 1201.41 (b)(10). The appellant has not shown that the administrative judge
erred or abused his discretion under these circumstances.
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most 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
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in fi nal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
claims and carefully follow all filing time limits and requirements. Failure to file
within the 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.
16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 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:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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.11 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).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent ju risdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U .S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following 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 | COOPER_LARICE_AT_0752_17_0122_I_1_FINAL_ORDER_2021074.pdf | 2023-04-13 | null | AT-0752 | NP |
3,282 | https://www.mspb.gov/decisions/nonprecedential/HILL_CHRISTINE_L_SF_0752_16_0127_I_1_FINAL_ORDER_2021138.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTINE L. HILL,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0752 -16-0127 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Jennifer Kehe , APO , AP, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellan t has filed a petition for review of the initial decision, which
affirmed the agency’s action demoting he r for eight specifications of conduct
unbecoming a supervisor . Generally, we grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB cas e law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opin ion and 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 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 eviden ce or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the appellant failed to
establish any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expr essly MODIFIED by
this Final Order to decide a due process issue raised below but not addressed in
the initial decision , we AFFIRM the initial decision.
¶2 The appellant filed this appeal of the agency’s action demoting her from the
position of Supervisory Education Program Administrator (Assistant
Superintendent) with the Department of Defense Education Activity (DODEA),
Department of Defense Dependents Schools , at Yokota Air Base, Japan, to the
position of Teacher at Fort Bragg, North Carolina, effective Nov ember 20, 2015.3
Initial Appeal File (IAF), Tab 1 at 2-3. The appellant reported directly to the
Japan District Superintendent, who is the proposing official in this appeal. IAF,
Tab 6 at 58 -61. The deciding official was the Acting Director for D ODEA
Pacific. Id. at 38.
¶3 The Japan District Superintendent proposed the appellant’s removal based
on eight specifications of conduct unbecoming a supervisor. Id. at 58-59. The
specifications arose from several encounters between the appellant and
3 The agency subsequently removed the appellant, and the appellant challenged her
removal in a separate appeal. Hill v. Department of Defense , MSPB Docket
No. DC-0752 -16-0744 -I-2, Final Order (Feb. 21, 2023) .
3
subordinate employees, in which she allegedly made inappropriate statements and
took questionable actions. Id. The Acting Director for DODEA Pacific mitigated
the penalty to a demotion, and the appellant filed this appeal. Id. at 35 -36. After
a hearing , the administrative judge issued an initial decision affirming the
demotion . IAF, Tab 41, Initial Decision (ID) at 1, 19. The administrative judge
sustained all specifications of the charge. ID at 2 -15. He also found no evidence
of any improper ex par te communication between one of the witnesses , the
proposing official, and the deciding official , as the appellant alleged.4 ID
at 15-17. The administrative judge found that the charge bore a nexus to the
efficiency of the service and that the demotion f ell within the bounds of
reasonableness . ID at 17 -19.
¶4 The appellant has filed a petition for review , and the agency has filed i n
opposition , to which the appellant has replied . Petition for Review (PFR) File,
Tabs 5, 7-8.
The administrative judge properl y assessed whether witnesses testified credibly .
¶5 The appellant contends that the administrative judge made erroneous
assessments of witness credibility . PFR File, Tab 5 at 25 -26. She asserts that the
administrative judge failed to explain his credibility assessments, specifically
when he credited the testimony of a gency witnesses over her own testimony .
Id. at 26 . The Board defers to the administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002 ).
Sufficiently sound reasons include findings that are incomplete, inconsistent with
4 The appellant also originally alleged age and sex discrimination, disparate treatment,
and retaliation for prior equal employment opportunity activities. IAF, Tab 1 at 16 -18,
Tab 24 at 10 -11, Tab 31 at 2 -4. She later withdrew those claims. IAF, Tab 32; ID at 15
n.4.
4
the weight of the evidence, and do not reflect the record as a whole. Faucher v.
Departme nt of the Air Force , 96 M.S.P.R. 203 , ¶ 8 (2004).
¶6 We find that the initial decision reflects that the administrative judge
identified the factual questions in dispute, summarized the evidence on each
disputed question, stated which version he believe d, and explained in detail why
he found the chosen version more credible, considering all of the relevant factors,
including the witnesses’ demeanor. See Hillen , 35 M.S.P.R. at 458. Accordingly,
we find no reason to disturb his well -explained conclusions on credibility .5
The appellant failed to show that the agency did not prove the charge .
¶7 The appellant argues that the agency failed to prove the charge , and that her
proven conduct was neither improper , nor detract ed from her character or
reputation as a supervisor. PFR File, Tab 5 at 21. A charge of “conduct
5 The appellant asserts that she was denied the opportunity to present witnesses who
supported her account of events and whose testimony would refute the testimony of the
agency witnesses. PFR File, Tab 5 at 26. However, the record does not indicate that
she lodged any objection to the administrative judge’s exclusion of the w itnesses she
identified to testify. IAF, Tab 24 at 12 -13, Tab 31 at 1 ; see Warren v. Department of
Defense , 87 M.S.P.R. 426 , ¶ 8 (2001) (holding that an a ppellant ’s claim that an
administrative judge improperly limited her witness list was not p roperly before the
Board when the appe llant did not object below to the administrative judge’ s rulings on
witnesses ).
The appellant additionally asserts that the administrative judge “allowed agency
witnesses to make statements unrelated to the charges an d not offered at the time of
their extensive depositions” and that the hearing testimony of these witnesses differed
from the sworn statements and depositions they gave . PFR File, Tab 5 at 14. We find
these arguments unavailing. Although she identifies the inconsistencies she believes
existed regarding the testimony of various witnesses, id. at 15 -21, s he has not shown
that she was denied the opportunity to impeach these witnesses during the hearing, and
the initial decision makes clear that she testified extensively regarding each charge.
The administrative judge simply found the appellant’s testimony to be less credible than
that of the other witnesses.
In a similar vein, the appellant included a deposition given by the agency’s Chief of
Labor Management and Employee Relations in her reply to the agency’s response to the
petition for review. PFR File, Tab 8 at 5 n.1, 11 -115. She explains that the
administrative judge struck such transcripts from the record, and she argues that
“particular attention should be given” to this deposition. Id. at 5 n.1. She did not,
however, explain why the deposition is relevant to the issues raised on appeal.
5
unbecoming” has no specific elements of proof but is established by proving that
the employee committed the acts alleged in support of the broad label . Canada v.
Department of Homeland Security , 113 M.S.P.R. 509 , ¶ 9 (2010). Whe n, as here,
more than one event or specification supports a sin gle charge, proof of one or
more, but not all, of the supporting specifications is sufficient to sustain the
charge. Alvarado v. Department of the Air Force , 103 M.S.P.R. 1 , ¶ 16 (2006),
aff’d , 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d , 490 F. App’x 932 (10th Cir.
2012).
¶8 Here, t he agen cy successfully demonstrated that the appellant engaged in
the conduct it alleged in support of the charge and that such conduct was
improper or unsuitable for a supervisory employee. The appellant’s attempt to
trivialize the impact of her misconduct does not change the fact that she admitted
to or did not deny that misconduct . See Chavez v. Small Business Administration ,
121 M.S.P.R. 168 , ¶ 5 (2014) (finding that an appellant’s admission can support
an agency’s charge of misconduct). Her argument is thus unavailing.
The appellant has not shown that the agency committed harmful error.
¶9 The appellant assert s that the charges fil ed against her were too stale to
support an adverse action. PFR File, Tab 5 at 9 -11. She argues that the agency
did not investigat e the allegations against her for “months ” after the actions she
was alleged to have committed . Id. at 9. She asks the Boa rd to remand he r
appeal for a determination pursuant to Heffron v. United States , 405 F.2d 1307 ,
1311 (Ct. Cl. 1969) , as to whether she was prejudiced by a delay in bringing the
charges . PFR File, Tab 5 at 10 -11.
¶10 This argument appears to be newly raised on review . The appellant did not
discuss the issue in her prehearing statement, nor did the administrative judge
include it in the summary of the telephonic prehearing conference . IAF, Tab 24
at 10 -12, Tab 31 at 1 -5. 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.
6
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The appellant
has no t offered any such evidence. Sh e also has not shown that an unreasonable
period of time elapsed before the agency brought a charge against her, much less
that a delay in bringing the charge likely caused the agency to reach a different
conclusion. See St ephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681
(1991) (holding that r eversal of an action for harmful error is warranted where the
procedural error likely had a harmful effect upon the outcome of the case before
the agency ). The events leading to the appellant’s demotion occurred between
June and August 2015, and the notice of proposed removal was issued on
October 6, 2015. IAF , Tab 6 at 58 -59.
¶11 The appellant also argues that the agency investigation was faulty . PFR
File, Tab 5 at 11-12. She assert s that the District Superintendent should not have
been allowed to serve both as investigator and proposing official. Id. She alleges
that the District Superintendent conducted the investigation “by soliciting
subordinate employees to offer any negative statements about [he r] under the
guise of a ‘hostile work environment’ claim,” even though no such claim was
filed with the agen cy’s equal employment opportunity (EEO) office. Id. at 11.
She further alleges that the District Superintendent manipulated the se employees
to solicit negative information , even convinc ing an employee with whom the
District Superintendent had a close rel ationship to supplement a prior statement
regarding the appellant’s conduct . Id. at 11 -12 & n.2 . The appellant also a llege s
that the District Superintendent fabricated the allegation s set forth in the eighth
specification regarding the alleged extramarit al affair. Id.; IAF, Tab 6 at 59.
¶12 The appellant, however, has offered no authority supporting the proposition
that the agency’s investigator and proposing official must be different persons , or
that any information developed in an investigation of a hosti le work environment
must be submitted to the agency’s EEO officials. As for her assertion that the
proposing official manipulated agency witnesses to provide unfavorable
testimony , the appellant has offered no evidence that proves her allegation .
7
Convers ely, the administrative judge directly addressed this matter when he found
that more than 10 agency witnesses had given credible and consistent testimony
that bore no indi cia of fabrication. ID at 14.
The appellant has not shown t hat the agency violated her right to due process.
¶13 The appellant argues that the specifications set forth in the proposal notice
lack clarity and did not provide a basis by which she could refute the agency’s
claims. PFR File, Tab 5 at 9, 12 -13. She explains that the specificati ons d o not
set forth specific dates, times, and places of her alleged misconduct or identify
the persons who were present. Id. at 12 -13. The lack of detailed notice, she
explains, caused the proceedings to be fundamentally unfair and abridged h er
right t o be heard. Id. at 13; see B arresi v. U.S. Postal Service , 65 M.S.P.R. 656 ,
666 (1994) (stating that d ue process mandates that notice be s ufficiently detailed
to provide a meaningful opportunity to be heard ) (citing Goldberg v. Kelly ,
397 U.S. 254 , 267 -68 (1970) ).
¶14 The appellant asserted these issues below, IAF, Tab 21 at 12 -15, but they
were not addressed in the initial decision . W e do so now and find that the notice
of proposed removal set forth an adequate basis for the appellant to refute the
agency’s claims .6 Although the proposal notice did not in all cases identify
specific dates or audience members, it is sufficiently specific for the appellant to
have called to mind the incidents upon which it is based and to understand the
agency’s objections to her behavior. IAF, Tab 6 at 58 -59.
6 The appellant further asserts that the agency did not explain how the charged conduct
violated any law. PFR File, Tab 5 at 13. However, an agency may demote an employee
for “such cause as will promote the efficiency of the service,” a standard which is not
limited to conduct that violates a statute, rule, or regulation. 5 U.S.C. § 7513 (a); cf.
Fontes v. Department of Transportation , 51 M.S.P.R. 655 , 662 -63 (1991 ) (holding that
there is no requirement that an employee must violate a specific written policy before
he can be disciplined under chapter 75 because the s ole criterion under that chapter is
that the adverse action be “for such cause as will promote the ef ficiency of the
service ”).
8
¶15 The appellant also alleges that , after she gave her oral response to the
charge, an ex parte meeting occurred be tween the deciding official, the proposing
official, and one of the appellant’s subordinates . PFR File, Tab 5 at 21 -23. The
appellant alleges that , in her response, she revealed the existence of an
extramarital affair between the subordinate and her cowo rker, and that she
believed th e relationship adversely affected the work environment. Id. at 21. The
deciding official testified that she contacted both the proposing official and the
subordinate regarding the appellant’s allegations about the affair . Id. at 21-22;
Hearing Compact Disc ( HCD ) (testimony of the deciding official ). The appellant
argues that the meeting was an ex parte communication within the meaning of
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 137 6-77 (Fed.
Cir. 1999) , and thus it denied her right to due process . PFR File, Tab 5 at 22 -23.
¶16 An appellant has the right to not ice of the charges against her and an
opportunity to present her side o f the story before an agency takes disciplinary
action . Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985);
Arrington v. Department of the Navy , 117 M.S.P.R. 301 , ¶ 16 (2012) . Becaus e of
that right, the deciding officia l is not allowed to consider —either in connection
with the charge itself or the penalty —new and material information that she
obtained ex parte . Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279-80 (Fed.
Cir. 2011); Stone , 179 F.3d at 1376-77. Information that the deciding official
knew from personal experience is cons idered ex parte information if the appellant
was not informed that it would be considered . Lopes v. Department of the Navy ,
116 M.S. P.R. 470 , ¶¶ 5-6, 10 (2011) . In determining whether a deciding
official’s consideration of information obtained ex parte violates due process, the
Board will consider whether the information is “so substantial and so likely to
cause prejudice that no empl oyee can fairly be required to be subjected to a
deprivation of property under such circumstances.” Stone , 179 F.3d at 1377 ;
Lopes , 116 M.S.P.R. 470, ¶ 7. Relevant factors in making that determination
include (1) whether the ex parte communication merely introduces cumulative
9
information or new information , (2) whether the employee knew of the
information and had a chance to respond to it , and (3) whether the ex parte
communication w as of the type likely to result in undue pressure upon the
deciding official t o rule in a particular manner. Stone , 179 F.3d at 1377. A due
process violation requires automatic reversal regardles s of whether the error
likely affected the agency’s decision. Id.
¶17 The administrative judge learned fr om the testimony of the subordinate , the
deciding official, and the proposing official that the subordinate told the deciding
and proposing officials that her coworker was the father of her new baby during
the time that elapsed between issuance of the proposal notice and the agency’s
decision to demote the appellant . ID at 16; HCD (testimony of the subordinate,
the deciding official, and the proposing official ). The administrative judge found,
however, that s uch communication w as irrelevant to the charge . ID at 16 ; see
Villareal v. Bureau of Prisons , 901 F. 3d 1361 , 1365 -66 (Fed. Cir. 2018) (finding
no due process violation, in part, because the deciding official did not rely on the
ex parte information when making his decision on the removal).
¶18 The appellant also assert s that the subordinate’ s September 24, 2015
supplemental statement, which was part of the underlying evidence for
Specification No. 8, was based upon or was itself an impermissible ex parte
communication.7 PFR File, Tab 5 at 11; IAF, Tab 6 at 96. The subordinate
testified that the proposing official asked her if she knew anything about
inappropriate photographs taken by, or of, the appellant , and she offered the
information set forth in the supplemental statement. HCD (testimony of the
subordinate and the proposing official ). The information in the supplemental
7 The appellant asserts that the testimony of the proposing official and the subordinate
conflicted regarding which of the two women had initiated the subordinate ’s
supplemental statement. PFR File, Tab 5 at 24 -25. She asserts that one of these
witnesses may have committed perjury. Id. Any inconsistency in the testimony,
however, was not relevant to the issue of whether improper ex parte communication
occurred.
10
statement , however, was incorporated in the proposal notice, and the appellant
had a full opportunity to respond to that notice. IAF, Tab 6 at 39 -52, 59 -60.
Accordingly, we find no evidence of any improper ex parte c ommunication
between the deciding official and other person s, and likewise, we find that the
appellant failed to establish a violation of her due process rights .8
The deciding official properly considered and applied the Douglas factors.
¶19 The appellant cont ends that the administrative judge erred when he found
that the deciding official had properly considered and applied the Douglas
factors. PFR File, Tab 5 at 26 -29; ID at 17 -19; Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1981).
¶20 The Board will review an agency -imposed penalty only to determine if the
agency considered all the relevant factors and exercised management d iscretion
within the t olerable limits of reasonableness . Douglas , 5 M.S.P.R. at 306. If the
Board sustains an agency ’s charges, it will defer to the agency ’s penalty
determination unless the penalty exceeds the range of allowable punishment
specified by statute or regulation, or unless the penalty is so harsh and
unconscionably disproportionate to the offense that it amounts to an abuse of
discretion. Saiz v. Department of the Navy , 122 M.S.P.R. 521 , ¶ 5 (2015 ). The
Board will defer to the employing agency because it has primary discretion in
maintaining employee discipline and efficiency. Id. The Board will not displace
management ’s responsibility but instead will ensure th e agency has properly
exercised its managerial judgment . Id.
8 Likewise, the appellant has not shown that these communications between the
deciding official and other persons constituted harmful error. Ward , 634 F.3d at 1281.
The appellant has not shown that it was an error for a personal conversation pertaining
only to the subordinate and her coworker to have occurred, nor did she show how such a
conversation would have caused the agency to reach a conclusion different from the one
it would have otherwise reached in the absence or cure of the error. Stephen ,
47 M.S.P.R. at 681, 685.
11
¶21 As set forth in the initial decision, t he deciding official considered the
nature and seriousness of the offense and its relation to the appellant’s duties,
position , and responsibilities, including whether the offense was intentional or
frequently repeated, her job level , and the type of employment. IAF, Tab 6 at 35 ;
ID at 17 -19. The deciding official considered that the appellant held a special
super visory position of l eadership, prominence and trust, and that he r misconduct
was d eliberate , directed toward subordinate employees, and generally
inappropriate in the workplace . IAF, Tab 6 at 35-36. The administrative judge
found that her concerns about the appellant’s retention in a leadership or
supervisory position were “well founded .” ID at 19 . Nevertheless, i n light of the
appellant’s successful employment history with the agency and the lack of prior
discipline except for the letter of reprimand , the deciding official mitigated the
proposed penalty of removal to demotion . IAF, Tab 6 at 36.
¶22 The appellant’s arguments on review fail to persuade us that her demotion
exceeds the bounds of reasonableness. Although on review the appellant argues
that the deciding official failed to consider an additional mitigating factor, her
personal circumstances including “marital struggles ,” PFR File, Tab 5 at 26, she
did not directly raise these issues as a mitigating factor in her reply to the
decid ing official , IAF, Tab 6 at 48-50; see Yeschick v. Department of
Transportation , 801 F.2d 383 , 385 (Fed. Cir. 1986) (holding that neither the
agency nor the B oard can be held to account for failing to consider factors not
identified by the appellant as significant) . Further , we would reach the same
conclusion even if we were to re weigh the penalty in light of that factor . We
would give far greater weight to other factors, including the nature and
seriousness of the offense, and its relation to the appellant’s duties, role, and
responsibilities as a supervisor and educational leader. We have considered the
appellant’s arguments about the dec iding official’s alleged improper management
of her, PFR File, Tab 5 at 28 ; however, we agree with the administrative judge’s
finding that the agency ’s penalty is within the bounds of reasonableness, ID
12
at 17-19. We additionally find that the appellant of fered no authority in support
of her argument that the agency retaliated against her by changing her duties and
conditions of employment during the period that followed her receipt of the
proposal notice. PFR File, Tab 5 at 28. In fact, we find the propo sing official ’s
actions reasonable , given the appellant’s well -documented misconduct that went
to the heart of her role as a supervisor and leader .
The administrative judge did not abuse h is discretion on discovery matters.
¶23 The appellant contends that the administrative judge abused his discretion
by denying her motions to compel and for sanction s. PFR File, Tab 5 at 23 -25;
IAF, Tabs 13, 18 . The Board ’s regulations grant the administrative judge broad
discretion in managing appeals . See 5 C.F.R. § 1201.41 (b). The Board will not
reverse an administrative judge’s rulings on discovery matters absent an abuse of
discretion . Wagner v. Environmental Protection Agency , 54 M.S.P.R. 447 , 452
(1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). On January 25, 2016, t he
appellant filed a motion for an extension of t ime in which to conduct depositions
and to compel full and complete discovery responses . IAF, Tab 13. On
February 4, 2016, the administrative judge granted the appellant’s motion to
compel for her first request for production and suspended case processin g to
allow additional time for discovery or settlement . IAF, Tab 16. The
administrative judge did not rule on the motion to compel regarding the
appellant’s second request for discovery because she had not submitted a copy of
the discovery request with t he motion. Id. at 1. On February 17, 2016, the
appellant filed a nother motion to compel for the second request for discovery and
for sanctions. IAF, Tab 18. Therein, she asserted that sanctions were in order
because the agency representative disrupted the deposition of the proposing
official “with repeated objections, comments, attempts to shape his client’s
testimony, and forcing the deposition to be ended before the ti me needed to
conduct an examination and allowed by MSPB law .” Id. at 12. The appellant
alleged that he behaved similarly at other depositions. Id. Although the appellant
13
alleges on review that the administrative judge flatly denied her motions, PFR
File, Tab 5 at 23 , the record shows otherwise , IAF, Tab 16, Tab 31 at 6. The
administrative judge even allowed the appellant to continue deposi ng the
proposing official , although her representative had been the one to end the
deposition prematurely . IAF, Ta b 31 at 6. We thus find that the administrative
judge did not abuse his discretion in handling these discovery matters.
The Board will not award sanctions against the agency.
¶24 The appellant alleges that the agency representative engaged in egregious
miscon duct during the proceedings by disparaging her representative. PFR File,
Tab 5 at 24, Tab 8 . The appellant requests that the Board sanction the agency and
refer her case to the Office of Special Counsel for purposes of investigating the
agency representa tive’s conduct “during closing argument and in the
proceedings .” Id. at 24. The appellant , however, did not identify in detail any
specific examples of the offensive comments and conduct she alleges occurred ,
even in her reply to the agency’s response, which specifically addresses her
request for sanctions . PFR File, Tab 8. As we have explained above, the
administrative judge acted within his sound discretion in his consideration of the
appellant’s request for sanctions. IAF, Tab 18, Tab 31 at 6. For all of these
reasons, we thus affirm the initial decision as modified.
NOTICE OF APPEAL RIG HTS9
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 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
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
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 an d
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or 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/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
16
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 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 provision that provided for j udicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
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.
July 7, 2018, permanently allows appellants to file petitions fo r judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2 017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HILL_CHRISTINE_L_SF_0752_16_0127_I_1_FINAL_ORDER_2021138.pdf | 2023-04-13 | null | SF-0752 | NP |
3,283 | https://www.mspb.gov/decisions/nonprecedential/MERRITT_ZACHERY_T_SF_0752_16_0664_I_1_FINAL_ORDER_2021211.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ZACHERY T. MERRITT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -16-0664 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James M. Hackett , Esquire, Fairbanks, Alaska, for the appellant.
Emily L. Macey , Esquire, Fort Wainwright, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Membe r2
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
dismissed his removal appeal as untimely filed . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 petitio ner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petition has
not established any basis under section 1201.115 for granting the petition for
review. Therefore, w e DENY the pe tition for review and AFFIRM the initial
decision , which is now the Board’s fina l decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency removed the ap pellant from his position as a Police O fficer
based on multiple charges of misconduct. Initial Appeal File (IAF), Tab 9
at 15-19. O n April 25, 2016, he received a copy of the agency ’s decision
removing him from service, ef fective May 11, 2016. IAF, Tab 1 at 31 , Tab 9
at 15. In the removal decision letter, the agency informed the appellant that he
could chal lenge his removal by filing a direct appeal with the Board or,
depending on the nature of his claims , appeal to the Board after filing either a
mixed -case equal employment opportunity (EEO) complaint with the agency or a
whistleblower reprisal complaint with the Office of Special Counsel. IAF, Tab 9
at 15-18. The removal decision did not inform the appellant of his right to file a
union grievance. Id.
¶3 On the day that the appellant received the removal decision , the local union
president was acting as his union representative . IAF, Tab 1 at 31 , Tab 6 at 12 .
He told the appellant that the union already had started the appeal process and
that he would be contacted by the union att orney assigned to represent him . IAF,
3
Tab 1 at 32. In addition, on May 3, 2016, the union president contacted the
agency about convening a Joint Resolution Panel (JRP) on the appellant’s
removal. IAF, Tab 10, Subtab 3 at 2. A JRP is part of the grievance process
under the applicable col lective bargaining agreement (CBA ). Id., Subtab 2 at 3 2.
The agency agreed to hold a JRP but advised the union president that “doing so
[would] prevent the employee from exercising [his] statutory appeal rights.” Id.,
Subtab 3 at 7 -8. The union elected not to proceed with the JRP. Id., Subtab 1
at 9; IAF, Tab 10 at 127-28.
¶4 The appellant was never contacted by the union attorney regarding filing a
Board appeal . IAF, Tab 1 at 33. The union president also effectively ignored the
appell ant’s numerous attempts to reach him until July 29, 2016, when the union
president first informed the appellant that the union in fact had not filed a Board
appeal. Id. at 76 . The appellant filed his appeal with the Board on the same day .
IAF, Tab 1 . The administrative judge issued an order informing the appellant that
his appeal was filed approximately 49 days late , based on a filing period
beginning on May 11, 2016, the effective date of his removal. IAF, Tab 2 at 2.
The administrative judge ordered the appellant to submit evidence and argument
proving by preponderant evidence that he either filed a timely appeal or that he
had good cause for his untimely filing. Id. at 3. Both parties submitted argument
and evidence on the timeliness issue. IAF, Tab 6 at 10-13, Tabs 8, 10.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision in which he found that t he Board has jurisdiction over the appeal
but that it was untimely filed without good cause because the appellant did not
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case . IAF, Tab 13, Initial Decision ( ID) at 1, 4 -10.3
Specifically, he found that the appellant received written notice on April 25,
3 The administrati ve judge found no factual dispute on the timeliness issue that
warranted a hearing. ID at 10.
4
2016, that he would be removed effective May 11, 2016, and therefore his appeal
was due no later than 30 days after May 11, 2016, i.e ., by June 10, 2016. ID at 6.
¶6 The administrative judge also found that the union president never filed a
grievance on th e appellant’s behalf, reasoning that the president never finalize d
the request for a JRP. ID at 5. In any event, the administrative judge concluded
that the appellant was not bound by any election to file a grievance because the
agency’s decision letter failed to inform him of the preclusive effect of doing so .
Id. The administrative judge determined that the appellant filed his appeal on
July 29, 2016, which was 49 days late. Id. He further found that the appellant
did not exercise due diligence or o rdinary prudence in filing his appeal, even
considering his unsuccessful attempts to contact his union representative , because
he allowed the deadline for filing his appeal to lapse without confirming that his
union representative had filed an appeal . ID at 8-9. Having found that the
appellant did not meet his burden of proving good cause for his filing delay, the
administrative judge dismissed the appeal as untimely filed . ID at 6 -10.
¶7 The appellant has filed a petition for review disagreeing with the
administrative judge ’s finding that the appellant failed to prove that he had good
cause for his filing delay. Petition for Review (PFR) File, Tab 1 at 19 -27. He
argues , in the alternative, that he did not make a valid and binding election to file
a Boar d appeal. Id. at 19, 2 1-24. He also reiterates his affirmative defenses . Id.
at 7-8 & n.10, 1 0-19, 22 -23. The agency has filed a response the appellant ’s
petition, and the appellant has filed a reply. PFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REV IEW
The administrative judge properly found that the appellant elected to pursue a
Board appeal .
¶8 Below, the appellant disavowed any grievance filed by the union, stating
that he was unaware that the union ever requested a JRP and that he “wish[ed ] to
pursue [his] appeal with the . . . Board.” IAF, Tab 10 at 128 -29. According to
the appellant, he “consider[ed] [his] July 29, 2016 Notice of Appeal to the Board
5
to be [his] individual election to pursue [his] appellate rights before the Board
and no t to proceed individual ly under the CBA.” Id. at 129.
¶9 The administrative judge found in the appellant’s favor, reasoning that the
union “never finalized or acted upon” the JRP request . ID at 5. Therefore, the
administrative judge found that the appellant was not precluded from pursuing his
subsequent Board appeal of his removal. Id.; see 5 U.S.C. § 7121 (d) ( providing
that an employee makes his election of forum in connection with an appe alable
matter that he alleges resulted from discrimination when he timely files in that
forum ); Goodwin v. Department of Transportation , 106 M.S.P.R. 520 , ¶¶ 19-20
(2007) ( explaining that pursuant to 5 U.S.C. § 7121 (d), an employee who alleges
that his removal was the result of prohibited discrimination may file a grievance
through negotiated grievance procedures, a direct appeal to the Board, or an EEO
complaint followed by a Board appeal). We agree.4 IAF, Tab 1 0, Subtab 1
at 5-9, Subtab 3 at 7-8.
¶10 On review, the appellant asserts that he made a valid election to pursue a
grievance when his union representative requested a JRP . PFR File, Tab 1
at 9-10, 21-22. He claims, in conflict with his earlier denial of knowledge of the
JRP request , that the union president “assured [him] the union was grieving and
pursuing [the] rem oval action under the CBA.” Id. at 22. We find that the
appellant’s assertion on this issue is prohibited by judicial e stoppel.5
4 The administrative judge alternatively found that the grievance election was not
binding because the agency failed to provide proper notice of the grievance option. ID
at 5 (citing Agoran os v. Department of Justice , 119 M.S.P.R. 498 , ¶ 15 (2013)
(observing that an election of forum for matters arising under 5 U.S.C. § 7121 (d) and
(e) is not valid if an agency fails to provide proper notice of an employee’s avenues of
recourse) ). Because we agree with the administrative judge’s finding that the union
president did not finalize his request for a JRP regarding the appellant’s removal, we do
not reach this alternative finding.
5 Further, the factual claims in the petition for review are made by the appellant’s
attorney and thus do not constitute evidenc e. Marcantel v. Department of Energy ,
121 M.S.P.R. 330, ¶ 6 n.1 (2014) (observing that the statements of a party’s
representat ive in a pleading do not constitute evidence).
6
¶11 Under the doctrine of judicial estoppel, a party cannot prevail before the
Board on review on an argument that contradicts on e he successfully presented
below to the administrative judge . Doe v. Department of Justice , 123 M.S.P.R.
90, ¶¶ 11-12 (2015) . The decision of whether to apply judicial estoppel lies
within the Board’s discretion . Id., ¶ 11. Although the test for judicial estoppel is
“not reducible to any general formulation of principle,” three factors are generally
relevant: (1) a party’ s later position must be clearly i nconsistent with the same
party’ s prior position; (2) in the earlier proceeding, the party was successful in
persuading the adjudicating body of his position, such that “judicial acceptance of
an inconsistent position in a lat er proceeding would create ‘the perception that
either the first or the second court was misled’ ”; and (3) “the party seeking to
assert an inconsistent position would derive an unfair advantage or impose an
unfair detriment on the opposing party if not est opped.” Id. (quoting New
Hampshire v. Maine , 532 U.S. 742 , 750 -51 (2001) (citations omitted)). The
purpose of the doctrine is to protect the in tegrity of the adjudicative process. Id.
The appellant’s position on review that he wishes to, and did, pursue a grievance
remedy is inconsistent with his prior position that he elected to pursue his Board
remedy . Further, the appel lant was successful in persuading the administrative
judge that he did not file a grievance and thus that his Board appeal was not
precluded . ID at 5. Finally, t he appellant seeks an unfair advantage against the
agency in pursuing his new argument; specifical ly, he wishes to challenge his
removal in the EEO process after already electing to do so before the Board . See
5 U.S.C. § 7121 (d); PFR File, Tab 1 at 19, 21-23, 29. Therefore, we find that the
appellant is judicially estopped from taking the position that he elected to
challenge his removal in the grievance process.
¶12 The appellant also argues that his election to file an appeal was invalid
because the agency incorrectly informed him that he had 45 days to file an EEO
complaint . PFR File, Tab 1 at 17-24. He argues the period for filing an EEO
complaint is 30 days, citing 5 C.F.R. § 1201.154 (a). Id. at 17-19. While a 30 -day
7
time period is discussed in section 1201.154(a), it is the period for filing a Board
appeal in cases, such as this one, in which an appellant alleges prohibited
discrimination . 5 C.F.R. § 1201.154 (a).
¶13 In contrast, t he time period for filing a n EEO complaint is governed by the
Equal Employment Opportunity Commission’s regulations . Those regulations
permit an employee to ini tiate contact with an EEO counselor at any time within
45 days of the removal decision. See 29 C.F.R. § § 1614.105 (a)(1) (providing that
an individual who wishes to file an EEO complaint must first “initiate contact
with a Counselor within 45 days of the . . . effective date of the [personnel]
action”), 1614.302(d) (providing that agencies are to process mixe d-case
complaints consistent with other EEO matters, with exceptions not applicable
here). Thus, the agency’s notice was correct in informing the appellant that he
had 45 days to contact an EEO counselor. IAF, Tab 9 at 17.
The appellant failed to establish good cause for the untimely filing of his appeal .
¶14 The parties do not dispute the administrative judge’s finding that the appeal
was untimel y filed , and we decline to disturb this finding on review .6 PFR File,
Tab 1 at 6, 29 , Tab 3 at 13; ID at 5 -6. Instead, the appellant argues that the
administrative judge erred in declining to find good cause for his untimeliness.
ID at 6 -10; PFR File, T ab 1 at 29. For the reasons explained below, we disagree.
¶15 To establish good cause for the untimely filing of an appeal, a pa rty must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Dep artment of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whet her an appellant has shown good cause, the
6 On review, the ap pellant refers to a 47 -day filing delay but does not provide any
evidence or argument that the filing delay was 47 days, rather than 49 days , as
determined by the administrative judge. PFR File, Tab 1 at 20. To the extent that the
appellant is arguing that the administrative judge did not properly calculate the length
of the filing delay, we disagree. ID at 5 -6; IAF, Tab 1, Tab 9 at 15 ; see 5 C.F.R.
§§ 1201.23 (explaining how the Board calculates time periods for complying with any
deadline) , 1201.154(a) (setting forth the applicable time limit for filing a mixed -case
appeal) .
8
Board will consider the length of the delay, the reasonableness of his excuse and
his showing of due diligence, whether he is proceeding pro se, and whether he has
presented evidence of the existence of circumstances beyond his control that
affected his ability to comply with the time limits or of unavoidable casualty or
misfortune , which similarly shows a causal relationship to his inability to timely
file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63
(1995), aff’d per curiam , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶16 We discern no error in the administrative judge’s finding that the appeal
was untimely file d without good cause shown. Contrary to the appellant ’s
arguments on review, the administra tive judge correctly applied the Moorman
factors . PFR File, Tab 1 at 24-29; ID at 6 -10. We agree with the administrative
judge’s finding that the 49-day filing delay is not minimal , the appellant was not
acting pro se, and he did not act reasonably and with due diligence in relying on
his union to file his appeal without being contacted by a union attorney or
verifying that the appeal was filed . ID at 7 -10; see Robinson v. Office of
Personnel Management , 85 M.S.P.R. 589 , ¶¶ 5-6 (2000) (finding that an
approximately 3 0-day delay in filing a petition was not minimal and that the
appellant’s asserted financial difficulties and attempts to secure counsel were not
good cause for his filing delay ).
¶17 On review , the appellant again asks the Board to excuse his untimely appeal
because he reli ed on his union representative’s false representation that the union
would appeal his removal . IAF, Tab 1 at 25 -26, 34 ; PFR File, Tab 1 at 25-26.
The administrative judge properly found that the appellant could not have
reasonably be lieved that a Board appeal was filed on his behalf because he was
never contacted by a union attorney as promised, and his union representative
ignored his inquiries . ID at 9.
¶18 The failure by an appellant ’s attorney to timely file the appeal , in and of
itself, does not constitute go od cause for the delay because an appellant is
responsible for the errors of his chosen representative. Miller v. Department of
9
Homeland Security , 110 M.S.P.R. 258, ¶ 11 (2008). A limited exception to this
rule exists when an appellant has proven that his diligent efforts to prosecute his
case were thwarted by his attorney’ s deception and negligence. Id. The
exception is not applicable here, however, because the appellant did not
personally monitor the progress of his appeal but instead left the matter entirely
in the hands of his union representative . Id., ¶¶ 12-13 (declining to find good
cause for an appellant’s untimel y filed petition for review; although the
appellant ’s attorney claimed to have timely filed the petition, he never provided
the appellant with a copy despite the appellant’s many requests , and the appellant
did not make any inquiries at the Board regarding the status of his appeal until the
deadline had passed ); IAF, Tab 1 at 32 -34. He has not shown that he personally
took any action to confirm that an appeal had been filed on his behalf during the
46-day period between his receipt of the removal decision and the deadline for
filing a Board appeal . ID at 9; IAF, Tab 1 at 31 -34; see Miller , 110 M.S.P.R.
258, ¶ 13.
¶19 We further find that the appellant ’s arguments on review present no
evidence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune , which similarly
showed a causal relationship to his inabilit y to timely file his appeal with the
Board . See Herring v. Merit Systems Protection Board , 778 F.3d 1011 , 1013
(Fed. Cir. 2015) (concluding tha t the Board abused its discretion in finding an
appeal untimely when there was a 10 -day delay in filing, but the appellant
demonstrated significant circumstances beyond her control to timely file, such as
her psychological conditions, delays in the receipt of her case -related documents
attributable to a clerical error made by her attorney’s office, and her attorney’s
“misleading and deceptive” assurances a few days before the deadline that the
appeal would be filed, all of which undoubtedly affected her abi lity to monitor
her attorney’s compliance with the filing deadline); Moorman , 68 M.S.P.R.
at 62-63. The appellant alleges that the union president “abruptly” ended the
10
April 25, 2016 meeting at which the appellant received the removal decision , the
removal decision did not include specific notice regarding the JRP process , and
the agency and union had unlawfully declined to grieve removals , including the
appellant’s . PFR File, Tab 1 at 24-27. These arguments fail. The appellant did
not raise them below. E.g., IAF, Tab 10;7 see Banks v. Department of the Air
Force , 4 M.S.P.R. 268 , 271 (1980) (observing that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence). Further , he does not explain on review how
the union preside nt’s conduct at the removal meeting , the alleged deficiencies in
the removal decision , or the failure to grieve the removal contributed to his delay.
PFR File, Tab 1 at 24-27.
¶20 Although the appellant argues that the administrative judge erred in failing
to consider whether the agency was unduly prejudiced by the delay, we disagree.
Id. at 27-29. Upon an appellant ’s showing of good cause for the untimely filing
of his appeal, waiver of the filing deadline is appropriate absent a showing of
substantial prejudice caused to the agency by the delay in filing . Boyd v.
Department of Veterans Affairs , 111 M.S.P.R. 116, ¶ 12 (2009). Becaus e the
appellant did not show good cause, the administrative judge properly ended the
inquiry without determining whether the agency would be prejudiced by the
delay. ID at 10.
The appellant ’s remaining arguments on review do not show any error in the
admi nistrative judge ’s decision to dismiss this appeal as untimely filed without
good cause.
¶21 The appellant makes additional arguments on review that are not relevant to
the timeliness of his appeal, which is the dispositive issue before the Board on
7 Although the appellant alleged below that the agency and the union had a history of
not submitting removals to the JRP, he did so to argue that the CBA did not comply
with the statutory requirements for grievance procedures at 5 U.S.C. § 7121 . IAF,
Tab 10 at 10-13.
11
review . PFR File, Tab 1 at 4 -20. Because we find that the administrative judge
properly dismissed this appeal as untimely filed, we do not address the
appellant ’s remaining arguments regarding the union grievance process , the
deficiencies in the agency’s removal n otice that do not relate to the filing of his
Board appeal, and the merits of his allegations of prohibited personnel practices ,
harmful procedural error, and due process violations . Id.
¶22 Accordingly, w e affirm the administrative judge ’s finding that the appellant
untimely filed his appeal without good cause. ID at 4 -10.
NOTICE OF APPEAL RIG HTS8
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.
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 c annot advise which option is most appropriate in any matter.
12
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
13
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. § 2000 e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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:
14
Office of Federal 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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for 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
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 Circu it Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any oth er circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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 | MERRITT_ZACHERY_T_SF_0752_16_0664_I_1_FINAL_ORDER_2021211.pdf | 2023-04-13 | null | SF-0752 | NP |
3,284 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_DANIEL_P_PH_0752_17_0388_I_1_FINAL_ORDER_2021227.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL P. DAVIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-0752 -17-0388 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph J. Chester , Esq uire, Pittsburgh, Pennsylvania, for the appellant.
Thao T. Pham , 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
sustained h is removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
materi al 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
decisi on were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude th at 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 regarding the collateral estoppel analysis , we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant was the Postmaster of Pittsburgh, Pennsylvania. Initial
Appeal File (IAF), Tab 11 at 74. On September 15, 2015, he was arrested and
charged with the following crimes under Pennsylvania law: (1) intimidation of
witnesses or victims (four counts); (2) criminal coercion (four counts);
(3) official oppression (four counts) ; and (4) obstructing the administration of law
or other government function (one count) . IAF, Tab 5 at 1 42-51. The charges
alleged that the appellant threatened and/or intimidated subordinate employees
who had observed him opening Express Mail packages in violati on of Federal law
and agency regulations, and/or directed them not to report his actions and not to
cooperate with law enforcement investigations of his actions. Id. at 137-38.
3
¶3 Effective November 27, 2015, the a gency indefinitely suspended the
appellant pending disposition of the charges .3 IAF, Tab 5 at 122-26. Following a
jury trial, on January 13, 2017, the appellant was convicted of three counts of
witness intimidation, and one count of each of the other charge s. Id. at 108-09.
The appellant appealed his conviction. Id. at 64.
¶4 On March 23, 2017, the agency issued a notice proposing to remove the
appellant for improper conduct. IAF, Tab 5 at 62-72. The charge was supported
by five specifications, which alleged, respectively, as follows: (1) the appellant
was found guilty of several criminal offenses ; (2) the appellant opened multiple
Express Mail packages without authorization at post offices in the Pittsburgh
area; (3) the appellant consumed alcohol and gambled at a local ca sino on
multiple occasions during duty hours ; (4) the appellant borrowed thousands of
dollars from a subordinate ; and (5) the appellant recorded a meeting without the
consent of the other participants . Id. at 62-66.
¶5 After the appellant responded to the pr oposal, IAF, Tab 5 at 53 -60, the
deciding official sustained the first four specifications and the charge, and found
that remov al was appropriate. Id. at 32-38. The agency removed the appellant
effective June 23, 2017. Id. at 36.
¶6 The appellant filed a Board appeal challenging his removal. IAF, Tab 1.
He raised affirmative defenses of harmful procedural error, laches, violation s of
law, and disparate treatment discrimination based on his ethnicity . Id. at 5 ;
Tab 32 at 3, 6 . Afte r holding a hearing, the administrative judge issued an initial
decision that affirmed the appellant’s removal. IAF, Tab 37, Initial Decision
(ID). The administrative judge found that the agency proved the charge by
preponderant evidence, ID at 2-10, tha t there is a nexus between the charge and
the efficiency of the service, ID at 1 6-17, and that the penalty of removal is
3 The appellant filed a separate appeal challenging his indefinite su spension. See Davis
v. U.S. Postal Service , MSPB Docket No. PH -0752 -16-0127 -I-1, Initial Appeal File,
Tab 5 at 50.
4
reasonable. ID at 15 -17. The administrative judge also found that the appellant
failed to prove any of his affirmative defenses.4 ID at 10-15.
¶7 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition.
PFR File, Tab 3.
ANALYSIS
The administrative judge correctly found that the agency proved the charge by
preponderant evidence.
Specification 1 : Criminal Conduct
¶8 In sustaining this specification, t he administrative judge applied the Board’s
standards for collateral estoppel5 to find that the appellant was precluded from
arguing that he did not engage in the criminal conduct described in this
specificatio n, i.e. , the conduct underlying his state court conviction . ID at 3. The
appellant challenges this finding on review, arguing that the administrative judge
could not rel y on his conviction to sustain this specification because the
conviction was not final , as he had appealed it to the Superior Court of
Pennsylvania . PFR File, Tab 1 at 7.
¶9 For the reasons discussed below, w e agree with the administrative judge
that the app ellant’s conviction is sufficient proof of this specification. We find,
however, that the administrative judge mistakenly relied on the Board’s standards
for collateral estoppel in sustaining this specification. IAF, Tab 32 at 2; ID at 3.
4 The appellant does not offer any specific argument on review challeng ing the
administrative judge’s finding s regarding his claims of violations of law, laches, and
harmful procedural error. Therefore, we do not address these findings further.
5 Under these standards, a party is barred from re -litigating an issue that was previously
litigated if: (1) the issue is identical to that involved in the prior action; (2) the issue
was actually litigated in the prior action; (3) the determination on the issue in the prior
action was necessary to the resulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the prior
action, either as a party to the earlier action or one whose interests were otherwise fully
represented in that action. McNeil v. Department of Defense , 100 M.S.P.R. 146 , ¶ 15
(2005).
5
When, as here, an appellant is found guilty of a crime under state law, the Board
will apply that state’s collateral estoppel standards to determine the preclusive
effect of the conviction. See G raybill v. U.S. Postal Service , 782 F.2d 1567 ,
1571 -73 (Fed. Cir. 1986) (applying Maryland state law on collateral estoppel in
determining the preclusive effect of the appellant’s conviction in Maryland state
court); Mosby v. Department of Housing and Urban Development , 114 M.S.P.R.
674, ¶¶ 5 -6 (2010) (applying District of Columbia collateral estoppel standards).
Accordingly, the administrative judge should have applied Pennsylvania law to
determine whether collateral estoppel applies.
¶10 Under Pennsylvania law, the application of collateral estoppel to issues
raised in a prior criminal proceeding is appropriate if: (1) the issue de cided in the
prior adjudication was identical to the one presented in the later action ; (2) there
was a final judgment on the merits ; (3) the party against whom collateral estoppel
is asserted was a party or in privity with a party to the prior adjudicatio n; and
(4) the party against whom it is asserted has had a full and fair opportunity to
litigate the issue in question in a prior action. Shaffer v. Smith , 673 A.2d 872,
874 (P a. 1996).
¶11 The first, third, and fourth criteria for applying collateral estoppel under
Pennsylvania law are essentially the same as the Board’s collateral estoppel
standards, and we agree with the administrative judge that these standards are
satisfied here. ID at 3. The issue in the criminal proceeding, i.e., whether the
appellant committed the misconduct described in specification one, is identical to
the issue presented in th is appeal ; the appellant was a party to the criminal
proceeding ; and the appellant was r epresented by counsel in that proceeding and
thus had a full and fair opportunity to present his case.
¶12 We further find that the remaining criterion for applying collateral estoppel
in this appeal —a final judgment on the merits in the prior criminal proceed ing—
also has been satisfied. U nder Pennsylvania law, a judgment is deemed final for
purposes of collateral estoppel unless or until it is reversed on appeal. Shaffer ,
6
673 A .2d. at 874-75. Thus, contrary to the appellant’s contention, the fact that he
appealed his conviction d oes not preclude the application of collateral estoppel.
Because Pennsylvania’s collateral estoppel standards have been met in this case ,
we agree with the administrative judge ’s finding that the appellant is precluded
from re-litigating the issue of whether he committed the misconduct described in
this specification and that, therefore, the agency proved this specification. ID
at 3.
Specification 2 : Op ening Express Mail Packages
¶13 As previously noted, the second specification of th e charge alleged that the
appellant opened Express Mail packages in various post offices throughout the
Pittsburgh area without authorization. IAF, Tab 5 at 64. In addressing this
specification, the administrative judge noted that the appellant admitted that he
opened Express Mail packages but contended that, as Postmaster of Pittsburgh, he
was authorized to do so to interdict contraband in the mail system. ID at 7. The
administrative judge further noted that, in support of this claim, the appellant
testified that, in 2012, a postal inspector (PI) opened a drug package in front of
the appellant, who was then the Postmaster of Toledo, Ohio, and directly
authorized and trained the appellant to open packages containing drugs. Id.
¶14 During his testimony, as summarized in the initial decision, the PI refuted
the appellant’s claim s that he had opened a drug package in front of the appellant
and had trained and authorized him to open packages. Id. The PI further testified
that he never trained or authorized a nyone else to open packages, as no one has
authority to open packages absent a warrant or exigent circumstances. I D at 7 -8.
¶15 The administrative judge recognized that there was conflicting testimony
between the appellant and the PI regarding the central iss ue of whether the
appellant was authorized to open Express Mail packages. ID at 8. Applying the
factors for resolving credibility issues set forth in Hillen v. Department of the
Army , 35 M.S.P.R. 453 , 458 (1987), the administrative judge credited the PI’s
testimony over the appellant’s conflicting testimony . Id. The administrative
7
judge found that the PI testified in a straightforward and forthright manner, that
his testimony on the issue of the circumstances in which mail can be opened was
consistent with that of an agent from the agency’s Office of Inspector General,
and that the PI had no motive to fabricate his testimony as it appe ars that he has
nothing to gain from the appellant’s removal and there is no evidence that he
harbors any animus for the appellant . Id.
¶16 By contrast, the administrative judge found the appellant’s version of events
inherently implausible. ID at 9. In par ticular, the administrative judge found
that, even if the appellant had been involved in drug interdiction operations
during his tenure as Toledo Postmaster, he did not adequately explain why he
contended he could continue in that capacity as Pittsburgh Postmaster, given that
he was not working in drug interdiction in that position . Id. The administrative
judge found it unfathomable that the appellant would take it upon himself to open
mail without express permission from the Pittsburgh branch of the age ncy’s
Postal Inspection Service or his supervisors in Pittsburgh. Id.
¶17 The appellant argues on review that, in sustaining this specification, the
administrative judge did not give proper weight to the PI’s testimony that the
appellant was trained to open p ackages, or to his testimony that corroborated the
appellant’s testimony regarding training, authorization, and “myriad instances of
past practice.” PFR File, Tab 1 at 8.
¶18 We do not agree with the appellant’s characterization of the PI’s testimony.
As explained above, the PI testified that he did not train or authorize the appellant
to open Express Mail packages, and the administrative judge credited the PI’s
testimony. ID at 7-8. To the extent that the appellant claims on review that the
PI trained and authorized him to open Express Mail packages, this argument is
essentially mere disagreement with the administrative judge’s explained findings
and credibility determinations and, as such, provides no basis to disturb the initial
decision. See Broughton v . Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (finding no reason to disturb the administrative
8
judge’s find ings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility).
Accordingly, we find no reason to disturb the administrative judge’s findings that
the agency proved specification 2 of the charge.
Specification 3: Gambling and Drinking on Duty
Specification 4: Borrowing Money from a Subordinate
¶19 It is undisputed that the appellant engaged in the mis conduct described in
specifications 3 and 4 . Therefore, we find that the administrative judge properly
sustained these specifications and the charge . ID at 9 -10.
The appellant failed to prove his affirmative defense of disparate treatment
discrimination based on his ethnicity.
¶20 The appellant also reiterates his affirmative defense of discrim ination based
on ethnicity. PFR File, Tab 1 at 7. For the reasons explained in the initial
decision, w e agree with the administrative judge that the appellant failed to prove
this defense . 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 dis crimination 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.
The administrative judge correctly found that the agency proved nexus.
¶21 On review, the appellant reasserts his argument below that the agency could
not establish a nexus between the sustained misconduct and the efficiency of t he
service because his administrative duties were “non -public” and there was no
“competently proven media disclosure .” PFR File, Tab 1 at 8 ; IAF, Tab 35 at 6.
The administrative judge properly rejected this argument in the initial decision ,
finding that it strains credulity to argue that the appellant could reasonably
perform the duties of his Postmaster position and advance the agency mission
after having been found guilty of criminal coercion, intimidating witnesses, and
9
official oppression against post al employees. ID at 16. The administrative judge
also correctly found that the sustained charge of opening mail without proper
authorization goes squarely to the agency’s mission, as does borrowing money
from a subordinate employee. Id. We discern no r eason to disturb this finding.
The administrative judge correctly found that removal is a reasonable penalty.
¶22 The appellant also challenges the penalty in his petition for review. PFR
File, Tab 1 at 8-9. He argues that the agency erred by failing to apply progressive
discipline and that the deciding official disregarded several Douglas factors in
deciding to remov e him.6 Id. at 8. He further contends that the administrative
judge failed to properly apply the Douglas factors in finding that removal was a
reasonable penalty. Id. at 8-9.
¶23 When, as here, the agency’s charge is sustained, the Board will review the
agency -imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Wiley v. U.S. Postal Service , 102 M.S.P.R. 535 , ¶ 14 (2006),
aff’d per curiam , 218 F. App’x 1001 (Fed. Cir. 2007). In making this
determination, the Board must give due weight to the agency’s primary discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Miles v. Department of the
Navy , 102 M.S.P.R. 316 , ¶ 12 (2006). T he Board will modify a penalty only
when it finds that the agency failed to weigh the relevant factors or that it clearly
exceeded the bounds of reasonableness in determining the penalty. Adam v. U.S.
6 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the
appropriate penalty for an act of misconduct. These so -called Douglas factors include
the natur e and seriousness of the offense and its relation to the employee’s duties; the
employee’s past disciplinary record; the employee’s past work record, including length
of service and performance on the job; and the effect of the offense upon supervisors’
confidence in the employee’s ability to perform his assigned duties. Id.
10
Postal Service , 96 M.S.P.R. 492 , ¶ 5 (2004) , aff’d , 137 F. App’x 352 (Fed. Cir.
2005).
¶24 The decision letter and the deciding official’s hearing testimony, as
summarized in the initial decision, demonstrate that he considered the relevant
Douglas factors in making his penalty determination, including the nature and
seriousness of the offense and the appellant’s job level . IAF, Tab 5 at 34 -36; ID
at 15-17. The deciding official found that the appellant’s misconduct was serious
and that, as an executive, the appellant was held to a higher standard. IAF, Tab 5
at 34. The deciding official also considered the notoriety of the appellant’s
misconduct, noting that h is conviction was publicized on multiple news outlets
throughout the region. Id. at 35. The deciding official considered the appellant’s
lengthy service, the absence of prior discipline, his military record, and his past
acceptable performance as miti gating factors, but found that they were
insufficient to outweigh the seriousness of his misconduct . IAF, Tab 5 at 34-36.
¶25 In assessing the reasonableness of the penalty, the administrative judge
found that the deciding official considered all relevant factor s in determining that
removal was an appropriate penalty. ID at 17. Recognizing that the Board must
accord proper deference to the agency’s primary discretion in managing its
workforce, we see no reason to disturb this finding. See Douglas , 5 M.S.P.R.
at 306. We also agree with the administrative judge that the agency’s decision to
forego the use of progressive discipline in this case is appropriate due to the
egregiousness of the appellant’s misconduct. ID at 17. Thus, we find that the
administrativ e judge properly sustained the appellant’s removal .
11
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 ap propriate
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 whi ch 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 immedi ately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of th e three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
13
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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 revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
14
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circ uit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Board neither endorses the services provided by any attorney nor 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 | DAVIS_DANIEL_P_PH_0752_17_0388_I_1_FINAL_ORDER_2021227.pdf | 2023-04-13 | null | PH-0752 | NP |
3,285 | https://www.mspb.gov/decisions/nonprecedential/KENNEDY_MICHAEL_SF_0752_16_0600_I_1_FINAL_ORDER_2021233.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL KENNEDY,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0752 -16-0600 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Douglas W. Frison , Esquire, APO, APO/FPO Pacific, 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 init ial decision, which
affirmed his removal . Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 o f
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regu lations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 By notice dated April 6, 2016, the agency proposed to remove the appellant
from his Teacher position at the Department of Defense Education Activities
Seoul American High School on the basis of the following charges:
(1) unauthorized early depar ture on February 17, 2016; (2) inappropriate conduct
supported by two specifications concerning emails sent by the appellant to
students on February 22, 2016; (3) lack of candor during an official investigation
on February 24, 2016; and (4) failure to foll ow procedures when, on February 17,
2016, he notified the school secretary that he would be absent on February 18
and 19, 2016, but failed to provide substitute plans for those days , as required by
the school’s policy . Initial Appeal File (IAF), Tab 6 at 67-71. The appellant
submitted a written response to the proposed removal on May 10, 2016. Id.
at 58-66. In a June 6, 2016 decision, the deciding official imposed the removal
effective June 17, 2016. Id. at 51 -54.
3
¶3 The appellant timely ap pealed his re moval to the Board, arguing that the
agency could not prove that he e ngaged in actionable misconduct; raising
affirmative defenses of disability discrimination, retaliation for prior equal
employment opportunity (EEO) activity , harmful errors, and due proc ess
violations ; and arguing that the deciding official failed to properly consider the
relevant factors in determining the penalty . IAF, Tab 2 at 12-18, Tab 12 at 12 -17.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision sustaining the charges; denying his due process, harmful
error, retaliation for prior EEO activity, and disability discrimination affirmative
defenses ; and finding that the agency established nexus and the reasonableness of
the penalty. IAF, Tab 33, Initial Decision (ID). Therefore, the administrative
judge affirmed the appellant’s removal. ID at 48.
¶5 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition, and the appellant has repli ed to the agency’s
response. Petition for Review (PFR) File, Tabs 5, 7, 9.3
3 Although the Board’s regulations provide that a p etition for review should not include
documents that were part of the record below, 5 C.F.R. § 1201.114 (b), both parties
submitted such documents on review. Specifically, the appellant attached to his
petition for review copies of his discovery requests, motions, a “Good Faith
Notification,” and a supplemental prehearing statement. PFR File, Tab 1 at 32 -67; IAF,
Tab 13 at 9 -16, Tab 15 at 4 -6, Tab 19 at 4 -7, Tab 21 at 4 -9, Tab 27 at 4 -19. The agency
submitted a copy the appellant’s first set of discovery requests. PFR File, Tab 7
at 13-21; IAF, Tab 14 at 7-15. Because these documents are not new, they do not
provide a basis for granting the petition for review. See Meier v. Department of the
Interior , 3 M.S.P.R. 247 , 256 (1980) ( stating that evidence that is already a part of the
record is not new); 5 C.F.R. § 1201.115 (d). The agency also submitted on review an
August 31, 2016 email concerning the scheduling of depositions. PFR File, Tab 7
at 11-12. We will not consider this docume nt for the first time on review because the
agency has not shown or alleged that it is new or material. See Cleaton v. Department
of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015) (explaining that the Board generally will not
consider evidence submitted for the first time on review absent certain circumstances),
aff’d , 839 F.3d 1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115 (d) (same) .
4
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the agency proved the charge s.
¶6 As noted above, the agency removed the appellant on the basis of fou r
charges concerning his conduct in February 2016, IAF, Tab 6 at 51-54, 67-71, and
the administrative judge sustained all four charges, ID at 3 -28. On review, the
appellant argues that the administrative judge erred in sustaining the charges,
generally al leging that the agency failed to prove the allegations against him and
arguing that the administrative judge erred in finding that his hearing testimony
was not credible . PFR File, Tab 5 at 21 -25, 28-29, Tab 9 at 5. However, we find
no basis to disturb t he administrative judge’s well -reaso ned, credibility -based
determination s or his conclusion that the agency proved all four charges.4 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 cred ibility).
The administrative judge properly found that t he appellant failed to prove his
affirmative defenses.
¶7 As noted above, the appellant raised several affirmative defenses below,
arguing that the agency violated his constitutional right to due process, committed
harmful procedural errors, discriminated against him on the basis of disability,
and retaliated against him for prior EEO activity. IAF, Tab 2 at 13-17, Tab 12
at 12-16. T he administrative judge found that the appellant failed to prove any of
these affirmative defense s. ID at 28 -44. On review, the appellant does not
challenge the administrative judge’s determination that he failed to prove his
harmful error, discriminatio n, and retaliation affir mative defenses, PFR File,
4 We further find no basis to disturb the administrative judge’s dete rmination, which the
appellant does not challenge on review, that the a gency established nexus between the
charges and the efficiency of the service . ID at 44; PFR File, Tabs 5, 9.
5
Tabs 5, 9, and we discern no basis to disturb these well -reasoned findings , see
Crosby , 74 M.S.P.R. at 105-06. He reasserts his argument, however, that the
charges were impermissibly vague and therefore v iolated his right to due
process.5 PFR File, Tab 5 at 21.
¶8 When , as here, a public employee has a property interest in his continued
employment, the Government cannot deprive him of that interest without due
process. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985).
Minimum due process requires notice of the charge s, an explanation of the
agency’ s evidence, and an opp ortunity to present a response. Id. In other words,
due process requires, at a minimum, that an employee being deprived of his
property interest be given “the opportunity to be heard ‘at a meaningful time and
in a meaningful manner. ’” Mathews v. Eldridge , 424 U.S. 319 , 335 (1976)
(quoting Armstrong v. Manzo , 380 U.S. 545 , 552 (1965)) , quoted in Buelna v.
Department of Homelan d Security , 121 M.S.P.R. 262 , ¶ 16 (2014).
¶9 In the initial decision, the administrative judge found that the appellant’s
respons e to the proposed removal did not raise any concerns about the clarit y of
the charges and the appellant responded in detail to each specification and charge.
ID at 30; IAF, Tab 6 at 58 -66. The administrative judge further found that there
was nothing in the record to suggest that the appellant or his representative at the
time failed to understand the charges and specifications set forth in t he proposal
notice. ID at 30. On review, the appellant argues that the specifications “lacked
5 The appellant also argues on review that the investigation leading to th e charges
against him violated his right to due process because, among other things, the Principal
and Assistant Principal “manipulated the investigation and the students,” “forced
students to choose sides,” “supported a whisper campaign by encouraging stu dents to
either come forward with something negative or stay away,” “questioned students
secretly in their offices,” and “forced the students to turn over private email messages.”
PFR File, Tab 5 at 18 -20. Because the appellant did not raise th ese argume nts below
and has not shown that they are based on new and material evidence not previously
available despite his due diligence , we need not address it for the first time on review.
See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) ; IAF, Tabs 2, 12.
6
clarity and a basis by which a defined cause of action could be unproven” and
failed to “set forth the rule, policy, regulation or the nature or details of what [the
appellant] supposedly did wrong. ” PFR File, Tab 5 at 21.
¶10 We have considered the appellant’s general challenge on review to the
sufficiency of the agency’s proposal notice but find that it satisfied the minimum
requirements of due process. Specifically, as discussed above, the proposal
notice set forth the charges against the appellant in detail and expl ained the
agency’s evidence. IAF, Tab 6 at 67 -71. The appellant had the opportunity to
respond to the proposal notice and availed himself of this opportunity, submitting
a written response through this chosen representative. Id. at 58 -66. Thus, we
find that the appellant received sufficient notice of the charges and the evidence
against him and was afforded a meaningful opportunity to present his side of the
story to the deciding official, which is all that due process requires in this
context. See Lou dermill , 470 U.S. at 545-46. Therefore, we discern no basis to
disturb the administrative judge’s determination that the appellant failed to prove
his due process affirmative defense . ID at 30.
The administrative judge correctly found that the agency pro ved the
reasonableness of the penalty.
¶11 When, as here, all of the agency’s charges are sustained, the Board will
review the agency -imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion wit hin the tolerable
limits of reasonableness. Penland v. Department of the Interior , 115 M.S.P.R.
474, ¶ 7 (2010); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06
(1981) (articulating a nonexhaustive list of 12 factors that are relevant in
assessin g the appropriate penalty for an act of misconduct ). In making this
determination, the Board must give due deference to the agency’s primary
discretion in maintaining employee discipline and efficiency, recognizing that the
Board’s function is not to disp lace management’s responsibility, but to ensure
that managerial judgment has been properly exercised. Penland , 115 M.S.P.R.
7
474, ¶ 7. The Board will modify or mitigate an agency -imposed penalty only
when it finds that the agency failed to weigh the relevant factors or that the
penalty clearly exceeds the bounds of reasonableness. Id.
¶12 The administrative judge found that the deciding official considered the
relevant evidence, appropriately weighed the Douglas factors, and exercised her
managerial discretion within the tolerable limits of reasonableness. ID at 44 -47.
In so finding , the administrative judge noted that the deciding official considered
the appellant’s offenses to be serious, intentional, and inconsistent with his
trusted role as a teacher and t he school’s obligation s to “guid [e] the
impressionable children of service member s” and to create a sta ble atmosphere
for the students. ID at 45. The administrative judge also explained that the
deciding official considered as aggravating factors the appellant’s prior
suspension for misconduct toward a student and his lack of rehabil itative
potential based on his failure to take ownership of his misconduct . ID at 46-47.
The administrative judge further noted that the deciding official considered the
appellant’s prior periods of successful performance and his unsubstantiated
contenti on that he was suffering from a medical condition when he “snapped” on
February 17, 2016, but found that the seriousness of the sustained offenses
outweighed any mitigating factors. ID at 47.
¶13 On review, the appellant argues that the administrative judge “ abused his
discretion in failing to properly consider the Douglas factors ,” claiming that he
was a “superb teacher” with an “excellent work ethic and reputation” who was
mistreated by the agency. PFR File, Tab 5 at 29. He also asserts that “[t]his case
provides an example of how an incredibly talented teacher was nearly destroyed
by false accusation [s].” Id. These unsupported and vague allegations and
apparent disagreement with the weight the deciding official afforded to each
Douglas factor, however, do not provide any basis for review. See Kirkland v.
Department of Homeland Security , 119 M.S.P.R. 74 , ¶ 25 (2013) (explainin g that
the issue in determining whether the Board should exercise its mitigation
8
authority is whether the agency considered the relevant Douglas factors and
reasonably exercised management discretion in making its penalty determination ,
not whether the Douglas factors could be weighed differently ).
The administrative judge did not abuse his discretion or exhibit bias in his
case-related rulings.
¶14 On review, the appellant argues that the administrative judge abused his
discretion in rendering the fo llowing rulings: denying his motion to compel
discovery responses; denying his motions to disqualify the agency representative
and for sanctions based on the conduct of the agency representative; denying his
motions to reschedule the prehearing conference ; denying his request for certain
witnesses ; and allowing the agency to submit unspecified evidence during the
hearing that it purportedly did not produce during discovery and to introduce
“irrelevant and prejudicial testimony during the hearing” that was unrelated to the
charges. PFR File, Tabs 5, 9.
¶15 An administrative judge has broad discretion to control the proceedings
before him. Scoggins v. Department of Army , 123 M.S.P.R. 592 , ¶ 20 (2016); see
5 C.F.R. § 1201.41 (b). The Board generally will not find reversible error in an
administrative judge’s case -related ruling unless it was not consistent with
required procedures or involved an abuse of discretion, and the resulting error
affected the outcome of the case. 5 C.F.R. § 1201.115 (c). For the reasons that
follow, we find that the appellant’s challenges to the administrative judge’s
handling of the proceedings below fail to establish reversible err or and provide no
basis to disturb the initial decision.
¶16 The administrative judged denied the appellant’s motions to compel
discovery responses, to disqualify the agency representative pursuant to 5 C.F.R.
§ 1201.31 , and to reschedule the prehearing conference on the ground that they
did not comply with the Board’s requirements. IAF , Tabs 16, 20, 22, 30. The
administrative judge found that the appellant’s motion to compel did not contai n a
statement that he had made a good faith effort to resolve the discovery dispute
9
with the agency and to narrow the areas of disagreement. 5 C.F.R.
§ 1201.73 (c)(1) (iii); IAF, Tab 27 at 11. It also was untimely filed . 5 C.F.R.
§ 1201.73 (d)(3); IAF, Tab 27 at 11, 16 -18. The appellant did not file his motion s
to disqualify the agency’s representative within 15 days after service of the notice
of the designation or becoming aware of an alleged conflict.6 5 C.F.R.
§ 1201.31 (b); IAF, Tab 6 at 1, Tabs 21, 27, 29. The appellant’s request s to delay
the prehearing conference lacked good cause and did not include a statement
regarding whether the opposing party ob jected . 5 C.F.R. § 1201.55 (a), (c); IAF,
Tabs 13, 16, 18, 20-22.
¶17 An administrat ive judge has discretion to d eny a motion for failure to
comply with the Board’s requirements. See Latham v. U.S. Postal Service ,
117 M.S.P.R. 400 , ¶ 73 (2012) (reaching this conclusion in the context of a
motion to compel) , superseded by regulation on other grounds as recognized in
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016) and overruled on
other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13 . On review, the
appellant does not co ntend that his motions in fact met the requirements set forth
in the applicable regulations, PFR File, Tabs 5, 9, and we therefore find no basis
to conclude that the adm inistrative judge abused his discretion in denying them .
¶18 The appellant also argues that the administrative judge did not allow him to
call “critically important witnesses.” PFR File, Tab 9 at 5. A s part of an
administrative judge’ s wide discretion to c ontrol the proceedings, he has the
authority to exclude evidence and testimony he believes would be irrelevant,
immaterial, or unduly repetitious. Parker v. Department of Veterans Affairs ,
6 As to the appellant’s request for sanctions based on the conduct of the agency’s
attorney, his claim s—that the attorney made “disrespectful references” to the
appellant’s attorney and engaged in a “cat and mouse” game —fall short of conduct
prejudicial to the administration of justice or contumacious conduct warranting
sanctions. 5 C.F.R. § 1201.43 . Black’s Law Dictionary 337 (9th ed. 2009 ) (defining
contumacious conduct as “willful disobedience of a court order” ); PFR File, Tab 5
at 25-26; IAF, Tab 21 at 4, 8-9, Tab 27 at 6 -11, Tab 29; PFR File, Tab 5 at 26-27.
10
122 M.S.P .R. 353 , ¶ 21 (2015); 5 C.F.R. § 1201.41 (b)(8), (10 ). The
administrative judge granted the appellant six of his requested witnesses,
including the appellant himself, but denied six others and a request for “unknown
witnesses.” IAF, Tab 23 at 2 -3, Tab 25 at 7 -9, Tab 30 at 1 -2. To obtain reversal
of an initial decision on the ground that the administrative judge abused his
discretion in excluding evidence, the appellant must show on review that relevant
evidence, which could have affecte d the outcome, was disallowed. Parker ,
122 M.S.P.R. 353 , ¶ 21 . Here, the appellant has not explained how the proffered
testimony that was denied is relevant or would have affected the outcome and
therefore h as not shown that the administrative judge abused his discretion.
¶19 The appellant further argues that the administrative judge improperly
allowed the agency to submit evidence during the hearing that it did not produce
during discovery and to introduce “irrelevant and prejudicial testimony during the
hearing” that was unrelated to the charges. PFR File, Tab 5 at 23 -24, Tab 9 at 5.
These n onspecific arguments, however, do not establish that the administrative
judge abused his considerable discretion in controlling the proceedings below.
See 5 C.F.R. § 1201.41 (b). Moreove r, the appellant has again failed to show how
he was prejudiced by any error in this regard. See Panter v. Department of the
Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that a n adjudicatory error that is
not prejudicial to a party ’s substantive rights provides no basis for reversal of an
initial decision ).
¶20 The appellant also claims that the administrative judge’s case-related
rulings, d iscussed above, are evidence of actual bias or create an appearance of
bias. PFR File, Tab 5 at 27 -29. However, we decline to find bias based on these
rulings . See King v. Department of the Army , 84 M.S.P.R. 235 , ¶ 6 (1999)
(stating that an administrative judge’s case -related rulings, even if erroneous, are
insufficient to establish bias). The appellant’s other arguments likewise fail to
identify any improper comments or actions by the administrative judge that
plausibly indicate favoritism . See Bieber v. Department of the Army , 287 F.3d
11
1358 , 1362 -63 (Fed. Cir. 2002) (finding that an administrative judge’ s conduct
during the course of a Board proceeding warrants a new adjudication on ly if his
comments or actions evidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible ”). Therefore, we reject the appellant’s argument
on review that the administrative judge was biased against him .
¶21 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS7
You may obtain review of this f inal decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the ri ghts described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefull y follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide whi ch one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . 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 rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
13
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 review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices 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.8 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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdi ction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
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/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KENNEDY_MICHAEL_SF_0752_16_0600_I_1_FINAL_ORDER_2021233.pdf | 2023-04-13 | null | SF-0752 | NP |
3,286 | https://www.mspb.gov/decisions/nonprecedential/SIPPERT_MICHAEL_DC_0752_17_0305_I_1_FINAL_ORDER_2021237.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL SIPPERT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -17-0305 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael Sippert , Frederick, Maryland, pro se.
Blaine Markuson , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s decision removing him from his position. On petition for
review, the appellant disputes the administrative judge’s findings on the merits of
the charge and nexus, and challenges her credibility determinatio ns. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 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).
NOTICE OF APPEAL RIGHTS2
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situatio n and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below t o decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule , an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is th e court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fed eral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any atto rney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an action that is app ealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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. 1 975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other se curity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a reque st 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 deli very or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protec tion
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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 Fed eral Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.go v/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representatio n in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIPPERT_MICHAEL_DC_0752_17_0305_I_1_FINAL_ORDER_2021237.pdf | 2023-04-13 | null | DC-0752 | NP |
3,287 | https://www.mspb.gov/decisions/nonprecedential/TREECE_LISA_DC_0752_16_0778_I_2_LACK_OF_QUORUM_ORDER_2021255.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA TREECE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER S
DC-0752 -16-0778 -I-2
DC-0752 -16-0660 -I-2
DATE: April 13, 2023
Anton Marino , Esquire, Christopher H. Bonk , Esquire, and Gary M.
Gilbert , Esquire, Silver Spring, Maryland, for the appellant.
Lauren Elizabeth Marini , Esquire, and Anna Bodi , Esquire, Baltimore,
Maryland, for the agency.
BEFORE
Raymond A . Limon, Member
ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the removal based on charges of absence without leave and failure to
comply with leave procedures and dismissed the constructive suspension appeal
for lack of jurisdiction. Vice Chairman Harris has recused herself from
consideration of this case . Because there is no quorum to alter the administrative
judge ’s initial decision , the initial decision now becomes the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3 (d).
2
NOTICE OF APPEAL RIG HTS1
You may obtain review of the final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the ri ghts described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this order . 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
U.S. Court of Appeals
for th e Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide f or Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you ma y obtain
judicial review of the final decision —including a disposition o f your
discrimination claims —by filing a civil action with an appropriate U.S. district
court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this order . 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 y our repr esentative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
your representative receives this order . If the action involves a claim of
discrimination based on race, color, religion, sex, na tional origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
4
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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 order . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and
your repre sentative receives this order before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this order .
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office 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
5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8) , or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition fo r
review within 60 days of the date of issuance of this order . 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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
Contact information 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 | TREECE_LISA_DC_0752_16_0778_I_2_LACK_OF_QUORUM_ORDER_2021255.pdf | 2023-04-13 | null | S | NP |
3,288 | https://www.mspb.gov/decisions/nonprecedential/BIGGER_GORDON_A_SF_0752_17_0004_I_1_FINAL_ORDER_REDACTED_2026656.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GORDON A. BIGGER,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -17-0004 -I-1
DATE: April 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeremy Thompson , Las Vegas, Nevada, for the appellant.
Eileen Dizon Calaguas , Esquire, San Francisco, California, 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
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 initia l decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 consist ent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 appropriately consider the appellant’s potential for
rehabilitation and to find that the agency’s penalty determination is not entitled to
deference , we AFFIRM the initial decision , still sustaining the removal .
BACKGROUND
¶2 The appel lant was formally employed as a Federal Air Marshal (FAM) with
the Transportation Security Administration (TSA) at the Department of Homeland
Security (DHS) . Initial Appeal File (IAF), Tab 7 at 142. FAMs such as the
appellant serve as law enforcement off icers and are issued a firearm, badge, and
credentials. Id. at 172 . Agency policy encourages off -duty carry ing of a firearm.
Id. at 174.
¶3 In 2015, while off duty, the appellant witnessed two men who had
previously broken into his garage entering anothe r home across the street.
Hearing Transcript (HT) at 78 (testimony of the appellant). The appellant
instructed his wife to call 911, and he obtained his agency -issued firearm, badge,
and handcuffs. Id. The appel lant approached the two suspects , display ing his
badge and credentials. HT at 80. He verbally instructed the two to stop and get
on the ground. HT at 79. Undeterred, both suspects continued in the appellant’s
direction, and the appellant then drew his weapon. HT at 81. As the men
continued within 21 feet of the appellant, one of the suspects facetiously asked
3
the appellant if he was going to shoot him. Id. The suspects continued to move
closer to the appellant, within about 11 to 12 feet, and the appellant, who stated
that he felt challeng ed and threatened at that point, fired a warning shot into the
ground. HT at 82. This enabled the appellant to detain the suspects
momentarily, but after hearing sirens in the vic inity, they attempted to escape.
HT at 83 -84. As the suspects were fleei ng, the appellant attempted to chase after
them and fired an accidental shot. HT at 85 -86. After ensuring that everybody in
the vicinity was safe and unharmed, the police arrived and eventually
apprehended the suspects. HT at 87.
¶4 As a result of this i ncident, the agency conducted an internal investigation,
during which the appellant was interviewed by the Office of Inspec tion. IAF,
Tab 7 at 210. On May 13, 2016, the a gency proposed the appellant’s removal on
one charge of off -duty misconduct (two specifications). Id. at 142. Specification
one asserted that while the appellant was off duty, he discharged his
agency -issued firearm as a “warning shot” at subjects he suspected were involved
in a burglary and that warning shots are prohibited under the agency’s policy on
Use of Force and Firearms, TSA Management Directive ( MD) 3500.2. Id.
at 142-44. Specification two asserted that during the same incident, the appellant
accide ntally discharged his firearm while running after the subjects in violation of
TSA MD 3500.2 , which also prohibits careless handling or misuse of firearms.
Id. at 144. After the appellant provided both oral and written replies, the agency
issued a final decision sustaining the proposed removal. Id. at 25 -34.
¶5 The appellant timely appealed his removal to the Board arguing, among
other things, that he was not prohibited from firing a warning shot while off duty,
that the agency misapplied its table of pen alties, and that the deciding official did
not adequately consider any mitigating factors.2 IAF, Tab 1 at 12 -13. The
2 The appellant also argued in his initial appeal that the agency committed a prohibited
personnel practice by removing him because of his age. IAF, Tab 1 at 12. The
appellant later withdrew this claim. IAF, Tab 16 at 2.
4
administrative judge held a hearing and issued an initial decision finding that the
agency proved both specifications of the charge and t hat the penalty of removal
was reasonable and promoted the efficiency of th e service. IAF, Tab 21, Initial
Decision (ID) at 8 -13, 15 -20. She also found that the appellant failed to prove his
affirmative defense s, and she affirmed the removal action. ID at 13 -15, 20.
¶6 The appellant has filed a petition for review arguing that the administrative
judge failed to consider relevant U.S. Court of Appeals for the Federal Circuit
case law and improperly analyzed the agency’s table of penalties and the
appellant’ s potential for rehabilitation. Petition for Review (PFR) File, Tab 1
at 3-8. The agency has filed a response to the appel lant’s petition. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The TSA is not subject to the provisions of chapter 75. See Winlock
v. Department of Homeland Security , 110 M.S.P.R. 521 , ¶ 5 (2009), aff’d per
curiam , 370 F. App’x 119 (Fed. Cir. 2010). I nstead, its MD 1100.75 -3,
“Addressing Unacceptable Performance and Conduct,” applies to this appeal. Id.,
¶ 6 (citing to MD 1100.75 -3, title of “Addressing Conduct and Per formance
Problems”). Under MD 1100.75 -3, the agency must prove by preponderant
evidence that its action is for such cause as will promote the efficiency of the
service, that there is a nexus between a legitimate Government interest and the
matter that forms the basis for the action, and that the penalty is appropriate,
taking into accoun t the relevant mitigating factors and any other relevant
considerations. Winlock , 110 M.S.P.R. 521 , ¶ 11 (citing 5 U.S.C.
§ 7701 (c)(1)(B), which remains applicable to the TSA under 49 U.S.C.
§ 40122 (g)(2), for the preponderance of the evidence standard).
5
The age ncy proved both specifications of the charge of off -duty misconduct by
preponderant evidence.
¶8 In his appeal, the appellant argued that the agency failed to prove
specification one of the charge because he was off duty at the time of the
misconduct and the agency’s prohibition of warning shots was not applicable
while he was off duty. IAF, Tab 8 at 6. The administrative judge addressed this
argument below and determined that agency policy , TSA MD 3500.2 , applied to
the appellant regardless of wheth er he was on or off duty, and therefore, his
warning shot constituted a violation of that policy. ID at 9 -11.
¶9 In making this finding, the administrative judge acknowledged that the
DHS’s Use of Deadly Force Policy appears to apply only to those “perfor ming
law enforcement missions.” ID at 9; IAF, Tab 7 at 167. However, she noted that
the DHS policy explicitly provides agency directorates with the authority to
supplement the policy with an additional policy statement or guidance, which the
TSA did by i ssuing TSA MD 3500.2. ID at 9; IAF, Tab 7 at 168, 170 -78. She
noted that TSA MD 3500.2 makes reference to both on - and off -duty situations,
which she interpreted to suggest that it applied beyond the confines of the
appellant’s on -duty time. ID at 9 -10. She further found that the policy’s
authorization for a FAM to “use all means of force that are available to protect
[himself] and others consistent with the threat” faced in an emergency did not
negate the specific prohibition of certain types of use of force such as the
prohibition of warning shots. ID at 10.
¶10 On review, the appellant reiterates his argument that the prohibition against
warning shots did not extend to off -duty conduct. PFR File, Tab 1 at 3 -5. He
relies on Graf ton v. Department of the Treasury , 864 F.2d 140 (Fed. Cir. 1988),
wherein the Federal Circuit found that the administrative judge erred in her
interpretation of an agency’s policy on the question of whether a prohibition on
warning shots applied to off -duty conduct. Id. at 142. The policy at issue in that
case discussed the “Carrying of Firearms” and stated that firearms are to be used
6
only if th ere is a danger of loss of life or serious bodily injury and that warning
shots were prohibited. Id. The policy went on to state immediately thereafter
that when firearms are fired by a special agent in the performance of duty, such
incident will be repo rted verbally to the special agent in charge as soon as
possible. Id. The court reasoned that if the former provision intended to apply
to the off -duty use of firearms, the latter provision “would logically have required
the reporting of that off -duty u se, not simply the reporting of use ‘in the
performance of duty.’” Id. Ultimately, the court found that the policy at issue
did not include a prohibition on off -duty warning shots and set aside the
administrative judge’s decision to the contrary. Id.
¶11 We find the appellant’s reliance o n Grafton to be misplaced. Here,
TSA MD 3500.2 references warning shots under the “Restrictions on the Use of
Force” section. IAF, Tab 7 at 173. Unlike Grafton , however, there is no
immediate follow -up to that provision t hat differentiates between on - and off -duty
conduct. Id. at 172-73. Moreover, although TSA MD 3500.2’s “Use of Force
Policy” section states that “[i]n an emergency situation, whether on or off -duty,
[law enforcement officers] are authorized to use all me ans of force that are
available to protect themselves and others consistent with the threat faced,” we
agree with the administrative judge that this language does not negate the
prohibition of warning shots because the prohibition itself indicates that it is not a
“means” that is “available” to a FAM.
¶12 In elaborating on its finding, the court in Grafton also stated that if the
limitation on the use of firearms in situations in which there is a danger of loss of
life or serious bodily injury was applied bro adly to the off -duty use of firearms,
“special agents would be prevented from using firearms for activities such as
hunting and target shooting.” Grafton , 864 F.2d at 142. The appellant argues
that if the policy here is construed to apply to off -duty conduct, the same resu lt
would occur —preventing the use of firearms for hunting and target shooting.
PFR File, Tab 1 at 5. We find this argument to be unpersuasive because i t is clear
7
that the court’s discussion of hunting and target shooting is directed at other
language pertaining to the “danger of loss of life or seriously bodily injury” and
not the prohibition on warning shots. Grafton , 864 F.2d at 142.
¶13 Based on the for egoing, we agree with the administrative judge’s
conclusion that the agency proved specification one by preponderant evidence.
The appellant does not appear to contest the administrative judge’s findin gs
regarding specification two. PFR File, Tab 1 at 3 -9. W e have reviewed the
record and find no reason to disturb those findings here . Accordingly, we find
that the administrative judge properly sustained the charge.
The agency did not commit harmful procedural error.
¶14 The appellant also argues on rev iew t hat the agency committed a harmful
procedural error because it incorrectly applied its table of penalties to justify the
removal action. PFR File, Tab 1 at 6 -7. Procedural error warrants reversal of an
agency’s action whe n the appellant establishes that the agency committed a
procedural error that likely had a harmful effect on the outcome of the case before
the agency. Powers v. Department of the Treasury , 86 M.S.P.R. 256 , ¶ 10 (2000);
5 C.F.R. § 1201.56 (c)(1).
¶15 Specifically, the appellant argues that the agency erred when it construed
his warning shot as an unnecess ary discharge of a weapon “where there [was]
apparent danger to human life,” which provides for a recommended penalty of
removal. PFR File, Tab 1 at 6 -7; IAF, Tab 7 at 268. He asserts that the warning
shot should have been construed as an unnecessary dis charge of a weapon “where
there is no apparent danger to human life,” because he was “an expert marksman”
and “was cognizant of th e area around the target area. ” PFR File, Tab 1 at 6-7.
This construction provides for a recommended penalty range of a 14 -day
suspension to removal. IAF, Tab 7 at 268.
¶16 We find the appellant’s argument unpersuasive. Either categorization
includes removal as a reasonable penalty, and although the appellant’s
categorizat ion includes removal only as the aggravated penalty, the agency’s
8
guidelines on applying the Table of Offenses and Penalties state that if the
appellant has committed more than one offense, the proposing and deciding
officials may consider whether the penalty should be in the aggravated penalty
range corresponding to the most serious offense charged. IAF, Tab 7 at 265.
Here, the appellant committed an additional offense when he acci dentally
discharged his firearm as outlined in specification two of the charge. Id.
at 25-28. Thus, regardless of whether the appellant’s warning shot presented an
apparent danger to human life, the penalty of removal would still be within the
range contemplated by the agency’s Table of Offenses and Penalties. Id.
at 267-68. Accordingly, we find that the agency did not commit harmful error in
the application of its Table of Offenses and Penalties.3
The penalty of removal was reasonable.
¶17 When the Board sustains all of the ch arges, it will review an
agency -imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within tolerable limits of
reasonabl eness. Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 25
(2014); Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272 , ¶ 20 (2001). In
determining whether the selected penalty is reaso nable, the Board defers to the
agency’s discretion in exercisi ng its managerial function of maintaining employee
discipline and efficiency. Archerda , 121 M.S.P.R. 314, ¶ 25. Thus, the Board
will modify a penalty only when it finds that the agency failed to weigh the
3 Moreover, an agency’s table of penalties is only one factor to be considered in
assessing the reasonableness of a penalty. Phillips v. Department of the Interior ,
95 M.S.P.R. 21 , ¶ 17 (2003), aff’d , 131 F. App’x 709 (Fed. Cir. 2005). It is well
established that an agency’s table of penalties i s merely a guide and is not mandatory
unless the agency has a specific statement making the table mandatory and binding
rather than advisory. Id.; see also Farrell v. Department of the Interior , 314 F.3d 584 ,
590-92 (Fed. Cir. 2002). Here, the agency’s Table of Offenses and Penalties explicitly
states that it is “intended to provide guidance” and “does not replace supervisory
judgment for determi ning appropriate penalties.” IAF, Tab 7 at 264.
9
relevant factors or that the penalty the agency imposed clearly exceeded the
bounds of reasonableness. Id.
¶18 Here, the deciding official considered the nature an d seriousness of the
misconduct and its relationship to the appellant’s duties as a FAM. IAF, Tab 7
at 30; HT at 16 (testimo ny of the deciding official). Sh e also discussed that as a
law enforcement officer, the appellant i s held to a higher standard tha n non-law
enforcement employees . IAF, Tab 7 at 30. She also considered as other
aggravating factors the appellant’s disciplinary history and the fact that he was on
notice of the appropriate procedures. Id.; HT at 16 -17. Sh e considered as
mitigating f actors the appellant’s 20 years of Federal service, character
references, and positive performan ce history . IAF, Tab 7 at 30; HT at 18 -19.
The deciding official also discussed the appellant’s potential for rehabilitation.
IAF, Tab 7 at 30; HT at 19 . Sh e determined that the appellant lacked potential
for rehabilitation because, despite ackno wledging that, in hindsight, he would
have acted differently, IAF, Tab 7 at 30, his responses to the proposal notice
reflected his belief that his actions were approp riate under the circumstances.
HT at 19 -20.
¶19 The administrative judge provided a comprehensive discussion of the
deciding official’s penalty analysis and found that while she conscientiously
considered the mitigating factors, the seriousness of the charg e outweighed those
factors. ID at 19. Specifically, regarding the appellant’s potential for
rehabilitation, the administrative judge found that “while reasonable minds may
differ as to whether the appellant’s behavior reflects genuine remorse and a
capac ity for rehabilitation, [the deciding official’s] assessment of the appellant’s
potential for rehabilitation was reasonable under the circumstances and supported
by the evidence. ” ID at 17 .
¶20 On review, the appellant argues that the deciding official and th e
administrative judge incorrectly assessed his potential for rehabilitation.
PFR File, Tab 1 at 7 -8. He argues that his explanation as to what occurred does
10
not suggest that he is not remorseful or that he lacks the potential for
rehabilitation. Id. at 8. He also reiterates that in his re sponse to the deciding
official, he took full responsibility for his actions. Id.; IAF, Tab 11 at 38 .
¶21 We agree with the appellant that the deciding official inappropriately
assessed his potential for rehabilitatio n. The Board has held that an appellant’s
denial of wrongdoing cannot be used in determining the reasonableness of the
penalty. Jefferson v. U.S. Postal Service , 73 M.S.P.R. 376 , 383 (1997). Here, the
deciding official’s conclusion that the appellant lacked potential for rehabilitation
is mostly based on his insistence that, at the time, he believed his actions were
reasonabl e and that he did not act improperly . IAF, Tab 7 at 30 -31; HT at 19-20.
Thus, we find that the deciding official erred in her assessment of the appellant’s
potential for rehabilitation when she cited his defense of his actions to conclude
that this facto r cut against him.
¶22 Because the deciding official failed to appropriately consider the
appellant’s potential for rehabilitation, a factor that she deemed relevant by
explicitly discussing it in the removal notice, the agency’s penalty determination
is not entitled to deference and we modify the initial decision accordingly . Von
Muller v. Department of Energy , 101 M.S.P.R. 91 , ¶¶ 18 -21, aff’d , 204 F. App’x
17 (Fed. Cir. 2006) , and modified on other grounds by Lewis v. Department of
Veterans Affairs , 113 M.S.P.R . 657 (2010) , overruled on other grounds by Singh
v. U.S. Postal Service , 2022 MSPB 15 . Nonetheless, we find t hat, due to the
seriousness of the appellant’s misconduct and the nature of his position as a law
enforcement officer , the penalty of removal is within the bounds of
reasonableness. Martin v. Department of Transportation , 103 M.S.P.R. 153 , 157
(2006) (stating that , in assessing whether the agency’s selected penalty is within
the tolerable limits of reasonableness, the most important factor is the nature and
seriousness of the misconduct and its relation to the employee’s duties, position,
and responsibilities), aff’d, 224 F. App’x 974 (Fed. Cir. 2007) . Accordingly, we
will not disturb the agency’s selected penalty of removal.
11
¶23 Based on the foregoing , we find that the administrative judge properly
sustained the removal action, and we affirm the initial decision , as mod ified .
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board do es not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which o ption is most appropriate in any matter.
12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
13
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC 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
14
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a 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.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.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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, signe d into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Board neither endorses the services provided by any attorney nor 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 | BIGGER_GORDON_A_SF_0752_17_0004_I_1_FINAL_ORDER_REDACTED_2026656.pdf | 2023-04-13 | null | SF-0752 | NP |
3,289 | https://www.mspb.gov/decisions/nonprecedential/YOON_KELBY_S_PH_0752_17_0074_I_1_FINAL_ORDER_2020611.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KELBY S. YOON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-0752 -17-0074 -I-1
DATE: April 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kelby S. Yoon , Abingdon, Maryland, pro se.
W. Clay Caldwell , Esquire, Aberdeen Proving Ground, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal from the agency and found that he did not meet his burden
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedentia l orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by th e 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
of proving the raised affirmative defenses . 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 ad ministrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evide nce or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 regarding the penalty analysis , we AFFIRM the initial
decision .
BACKGROUND
¶2 The appellant worked for the agency as a Chemist, GS -1320 -12. Initial
Appeal File (IAF), Tab 5 at 11. This position is classified as emergency -essential
becaus e it supports the agency’s mobilization and wartime mission. Id. at 29. On
December 10, 2012, the appellant signed the required Department of Defense
Civilian Employee Overseas Emergency -Essential Position Agreement (DD
Form 2365), which states in releva nt part, “[ p]erformance of the duties of this
position during a crisis situation or wartime will require that you relocate (TDY
or PCS) to a duty station in an overseas area.” Id. at 26, 30. Moreover, the
appellant’s position description states, among ot her requirements, that he must be
able to pass annual deployment and occupational medical examinations; be
responsible for ensuring no medical condition would prevent deployment; and be
capable for emergency worldwide deployment for response to chemical,
3
biological, and accidental incidents, 24 hours a day, 365 days per year. Id.
at 30-31.
¶3 On October 5, 2015, the agency conducted a fitness -for-duty examination
on the appellant. Id. at 25. The agency’s medical doctor diagnosed the appellant
with a tempor ary “chronic medical condition that is not adequately controlled,”
and noted the possibility of an “undiagnosed serious health condition.” Id. The
doctor recommended the appellant undergo additional examination and not have
access to “Chemical Warfare Ag ents, Biological Select Agents and Toxin, or
classified information.” Id. Based on these recommendations, the agency placed
the appellant on administrative leave, effective November 23, 2015. Id. at 22 -24.
¶4 The appellant underwent a second fitness -for-duty examination in April of
2016. Id. at 21. The agency’s medical doctor diagnosed the appellant with a
permanent “significant medical condition,” rendering him permanently unable to
deploy. Id. The doctor also determined that the appellant was not me dically fit
to hold a security clearance and that he “would be at increased risk and would
potentially pose a risk to coworkers if he were to have access to chemical and
biological agents of military interest.” Id. As a result, effective November 12,
2016, the agency removed the appellant due to his medical inability to maintain
the requirements set forth in his DD Form 2365, a condition of employment for
the Chemist position that he held. Id. at 11 -15, 26, 30.
¶5 On November 14, 2016, the appellant filed a Board appeal contesting his
removal from the agency. IAF, Tab 1. In his initial appeal, the appellant made
no mention of any affirmative defense. Id. The appellant did not request a
hearing, prompting the administrative judge to issue an order setti ng January 20,
2017, as the close of the record. IAF, Tab 1 at 3, Tab 6 at 1. In this order, the
administrative judge did not identify the issues for adjudication, outline requisite
burdens, or address any other matter. IAF, Tab 6 at 1 . On January 9, 2017, the
appellant responded to the close of the record order and alleged that the agency
did not follow the procedures in 5 C.F.R. part 339, Medical Qualification
4
Determinations, during his medical examination process; claimed that the ag ency
violated 29 C.F.R. part 1601, Procedural Regulations; and appeared to allege
some form of disability discrimination. IAF, Tab 7 at 4 -5. The agency did not
respond and the administrative judge never issued an affirmative defense order
apprising the a ppellant of his burdens of proving such defenses.
¶6 On August 10, 2017, the administrative judge issued an initial decision on
the written record, affirming the appellant’s removal, finding that the agency met
its burden of proving the charge, a nexus betwee n the charge and the efficiency of
the service, and the reasonableness of the penalty. IAF, Tab 11, Initial Decision
(ID) at 3 -8, 15 -16. The administrative judge also found that the appellant raised
the affirmative defenses of harmful procedural error an d disability discrimination;
however, did not meet his burden of prevailing on either. ID at 9 -15.
¶7 The appellant then filed a petition for review, arguing that : (1) the
administrative judge erred because he categorized his alleged disability as
physica l and not mental; (2) the agency did not iden tify his medical condition;
(3) the administrative judge misallocated the burden s of proof; and (4) the agency
did not follow procedures outlined in 5 C.F.R. part 339. Petition for Review
(PFR) File, Tab 1 at 4 -5. The agency responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge appropriately determined that the agency proved the
charge and a nexus between the charge and the efficiency of the service .
¶8 We agree wi th the administrative judge’s findings in the initial decision that
the agency proved by preponderant evidence the charge and a nexus between the
charge and the efficiency of the service . ID at 3 -8. These findings are well
reasoned and supported by the e vidence of record. See Clay v. Department of the
Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the
administrativ e judge’s findings in the initial decision when she considered the
evidence, drew appropriate inferences, and made reasoned conclusions) .
5
¶9 On review , the appellant argues that the agency failed to identify his
medical condition. PFR File, Tab 1 at 4. The appellant did not raise this issue
during the adjudication of his appeal before the administrative judge. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party ’s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980). The re has been no showing of these
circumstances; thus , we need not consider the appellant ’s argument.
¶10 Even if we were to consider the appellant’s argument, the agency explains
in its response to the petition for review that for privacy purposes , it limited the
information regarding the appellant’s medical condition in the relevant
documentation. PFR File, Tab 3 at 5. A review of the record reveals that the
appellant was aware of his medical diagnoses referenced by the agency and the
agency’s concern with him being unable to meet a necessary condition of
employment. The agency listed the dates of the appellant’s medical
examinations, where each took place, the doctor’s name, and provided the
memos. IAF, Tab 5 at 16, 21 -22, 25. Moreover, the appellant ref erences a
“psychological interview” in his pleading and in his petition for review, and
states that the agency diagnosed him with a “mental condition.” IAF, Tab 7 at 4 ;
PFR File, Tab 1 at 4. The appellant’s argument is not supported by the evidence
and p rovides no basis to overturn any portion of the initial decision.
The administrative judge’s penalty analysis in the initial decision must be
modified; however, the appellant’s removal is still proper .
¶11 In the initial decision, the administrative judge analyzed the appellant’s
removal penalty as a disciplinary action. ID at 15 -16. The appellant’s removal
from the agency based on medical inability to maintain a requirement of his
position was non-disciplinary in nature and not intended to reflect negatively on
his service to the agency. IAF, Tab 5 at 13. T herefore, the traditional penalty
analysis from Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981), does
6
not apply .3 Brown v. Department of the Interior , 121 M.S.P.R. 205 , ¶ 18 (2014)
(finding tha t the Douglas factors did not apply in determining the reasonableness
of the penalty when a removal action was based on a physical inability to
perform) , overruled on other grounds by Haas v. Department of Homeland
Security , 2022 MSPB 36 .
¶12 The proper standard for determining the penalty in this matter is whether it
exceeded “the tolerable limits of reasonableness ,” and such a determination
should be based solely on the medical evidence. Brown , 121 M.S.P.R. 205 , ¶ 18 .
In this appeal, the appel lant’s medical condition is permanent in nature. IAF,
Tab 5 at 21. The medical documentation supporting this is unrebutted , leading to
the conclusion that the appellant’s removal was reasonable . See McPherson v.
U.S. Postal Service , 48 M.S.P.R. 624 , 633 -34 (1991) ( holding that removal was
reasonable f or an employee whose physical condition rendered him incapable of
performing the duties of his position).
¶13 Generally, when an employee cannot perform the essential functions of his
position due to a medical condition , the Board will examine whether this is true
with or without a reasonable accommodation and whether the agency has any
vacant funded positions to which it can assign the appellant within his
restrictions. See Brown , 121 M.S.P.R. 205 , ¶ 19. There is no indication that the
appellant could have performed the essential functions of the position he
occupied with or without a reasonable accommodation or that the agency ha d a
vacant funded position to which the appellant could have been reassigned. The
appellant has not argued otherwise . Nor has the appellant demonstrated that he
sought a reasonable accommodation or provided the agency with information
concerning his ability to work in another position. Consequently, the agency’s
removal penalty is appropriate .
3 In Douglas , the Board articulated a non -exhaustive list of factors relevant to the
penalty determination in a disciplinary action. Douglas , 5 M.S.P.R. at 305 -06.
7
The administrative judge correctly found that the appellant failed to meet his
burden of proving the raised affirmative defenses.
¶14 As an initial matter, the Board requires that during the adjudication of an
appeal, an administrative judge is to apprise an appellant of the applicable
burdens of proving raised affirmative defenses, as well as the kind of evidence
that an appellant is required to produce to meet his burden. Erkins v. U.S. Po stal
Service , 108 M.S.P.R. 367 , ¶ 8 (2008). When an administrative judge fails to do
so, the Board typically remands the appeal s o an appellant can be afforded such
notice and an opportunity to submit evidence and argument under the appropriate
standard. Id. However, an administrative judge’s failure to provide an appellant
with this notice can be cured if the initial decision puts an appellant on notice and
affords the appellant an opportunity to meet his burden for the first time on
review. See Easterling v. U.S. Postal Service , 110 M.S.P.R. 41 , ¶ 11 (2008).
¶15 In this case, the initial decision describes the appellant’s burden in proving
the affirmative defenses of harmful procedural error and disability discrim ination.
ID at 9 -15. Furthermore, the initial decision explains the type s of evidence that
the appellant would have had to set forth in order to prevail. Id. In his petition
for review, the appellant does not attempt to argue that he met his burden in
proving either raised affirmative defense . PFR File, Tab 1 at 4 -5. As a result, to
the extent that the administrative judge erred by not provi ding the appellant
notice regarding his burdens on the raised affirmative defenses , it has been cured .
See Mila m v. Department of Agriculture , 99 M.S.P.R. 485 , ¶ 10 (2005).
¶16 Regarding the merits of the appellant’s affirmative defenses, the
administrative judge correctly determined in the initial decision that the appellant
failed to meet his burden of proving that the agency committed a harmful
procedural error or discriminated against him based on a disability. ID at 9 -15.
We discern no r eason to disturb these supported and reasoned conclusions. See
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 35 7, 359
(1987) (holding that the Board will not disturb conclusions made by the
8
administrative judge when supported by evidence and the inferences are
appropriate) .
¶17 The appellant claims on review that the administrative judge considered his
alleged disabi lity as physical rather than mental. PFR File, Tab 1 at 4. While the
administrative judge makes references to the appellant’s alleged disability as
physical in the initial decision, this was not dispositive as to the finding that the
appellant failed to meet his burden of proving the agency discriminated against
him based on a disability. ID at 10 , 12. The initial decision reflects that the
administrative judge considered the entire record when reaching this conclusion
and applied t he appropriate standa rd. ID at 10 -15. When the initial decision was
issued, there was nothing in the record outlining the specifics of the appellant’s
alleged disability. The appellant also fails to provide any details on his disability
status in his petition for review. P FR File, Tab 1.
¶18 On review , the appellant also raises a claim that the agency violated
5 C.F.R. part 339. Id. at 4-5. Specifically, he allege s that the medical
documentation considered by the agency in his removal proceedings is not from a
proper medical professional. Id. It is un clear if this is the same allegation that
the appellant raised before the administrative judge. IAF, Tab 7 at 4.
Notwithstanding, the medical documentation relied on by the agency consists of
findings issued by a medical doctor with a master’s degree in public health. IAF,
Tab 5 at 21, 25. Thus, the medical documentation and the agency physician who
examined the appellant b oth meet the criteri a set forth in 5 C.F.R. § 339.104 .
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
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
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for s eeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this fina l decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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
10
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that 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. ____ , 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, re ligion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Cont act information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
11
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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
12
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 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.
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.
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 | YOON_KELBY_S_PH_0752_17_0074_I_1_FINAL_ORDER_2020611.pdf | 2023-04-12 | null | PH-0752 | NP |
3,290 | https://www.mspb.gov/decisions/nonprecedential/LEON_JULIO_L_SF_0752_15_0602_I_2_FINAL_ORDER_2020659.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JULIO L. LEON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -15-0602 -I-2
DATE: April 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Julio L. Leon , Miami, Florida, pro se.
Robert Gerleman , Grand Prairie, 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
affirmed his removal. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regula tion 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 th e resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 120 1.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the pe tition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s alternative finding that the agency proved by
clear and convincing evidence that it would have removed the appellant in the
absence of his alleged protected disclosure, we AFFIRM the initial decision.
¶2 On petition for review, the appellant reasserts many of the arguments he
made below and that the administrative judge , in his initial decision, found
unpersuasive. Refiled Appeal File, Tab 10, Initial Decision (ID); Petition for
Review (PFR) File, Tab 5. We find that the appellant’s arguments on review
constitute mere disagreement with the administrative judge’s findings and do not
provide a basis for reversal. 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).
¶3 The appellant submits numerous documents on review. PFR File, Tab 5
at 18-66, Tab 11 at 17 -19. It appears that all of these documents predate the clos e
of the record below . It also appears that many, if not all, of these documents
were omitted from th e record. The appellant seems to assert that at least some of
these documents were attached to his rebuttal to the proposed removal and
3
therefore should have been submitted into the record as a part of the agency’s
response to the initial appeal . PFR File, Tab 5 at 2 -3, Tab 11 at 10. However,
regardless of whether the agency should have submitted these documents into the
record below , the Board will norm ally only consider evidence submitted for the
first time on review upon a showing that it previously was unavailable despite the
petitioner’s due diligence. See Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980); 5 C.F.R. § 1201.115 (d). Because the appellant has failed to
make such a showing, we decline to consider his evidence.
¶4 The appellant also alleges the administrative judge was biased against him .
PFR File, Tab 5 at 3 -4, 9, 11 . In making a claim of bias or prejudice against an
administrative judge , a party must overcome the presumption of honesty and
integrit y that accompanies administrative adjudicators. Oliver v. Department of
Transportation , 1 M.S.P.R. 382 , 386 (1980). Furthermore, an administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if his or her comments or actions evince a deep -seated
favoritism or antagonism that would make fair judgment impossible. Scoggins v.
Department of the Army , 123 M.S.P.R. 592 , ¶ 19 (2016). Here, we find that the
appellant merely takes exception to the fact that the adminis trative judge r uled
against him and we therefore find his argument of bias to be without merit. See
Thompson v. Department of the Army , 122 M.S.P.R. 372 , ¶ 29 (2015).
¶5 For the reasons set forth in the initial decision, w e agree with the
administrative judge that the appellant failed to demonstrate that he made a
protected disclosure . ID at 30 -33. Accordingly, we modify the initial decision to
vacate the administrative judge’s alternative finding that the agency proved by
clear and convincing evidence that it would have removed the appellant in the
absence of his alleg ed protected disclosure. ID at 33-35; see Clarke v.
Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014) ( finding that
the Board may not proceed to the clear and convincing evidence test unless it has
4
first determined that the appellant established his prima fac ie case), aff’d , 623 F.
App’x 1016 (Fed. Cir. 2015).
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nat ure of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their juri sdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one t o review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court o f Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10 , and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit S ystems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a c laim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicia l review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decisio n. 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 cla im of
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative 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
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohi bited 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 Circu it or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B) .
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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. Pu b. 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 give n case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locato r/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEON_JULIO_L_SF_0752_15_0602_I_2_FINAL_ORDER_2020659.pdf | 2023-04-12 | null | SF-0752 | NP |
3,291 | https://www.mspb.gov/decisions/nonprecedential/LUNA_M_CARMEN_DA_1221_16_0223_W_2_FINAL_ORDER_2020707.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
M. CARMEN LUNA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-1221 -16-0223 -W-2
DATE: April 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Rogers , San Antonio, Texas, for the appellant.
Thomas J. Herpin , Esquire, Houston, 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 her individual right of action (IRA) appeal for lack of jurisdiction .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
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
Generally, we grant petitions such as this one only in the following
circumstances: the initial d ecision 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 t he course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, des pite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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
VAC ATE the administrative judge’s analysis of collateral estoppel and her
discussion of whether the appellant nonfrivolously alleged that she made a
protected disclosure , we AFFIRM the initial decision.
BACKGROUND
¶2 The unique and unusual background of this appeal is largely set forth in the
Board’s Final Order in Luna v. Department of Veterans Affairs , MSPB Docket
No. DA -0752 -14-0378 -I-1, Final Order (Apr . 29, 2015) (0378 Final Order) . In
2003, the appellant retired from her position with the Department of Health and
Human Services (HHS) , Food and Drug Administration (FDA) , and began
receiving a Civil Service Retirement System (CSRS) annuity . Id., ¶ 2. The
Standard Form (SF) 50 documenting her separation classified it as an “early out”
retirement. Id. The agency hired the appellant effective February 5, 2006, and
she continued to receive her CSRS annuity during her reemployment. Id.
Effective February 23, 2010, the agency terminated the appellant for misconduct.
Id.
3
¶3 The appellant filed an appeal of h er termination with the Board . Id., ¶ 3.
The administrative judge dismiss ed the appeal for lack of jurisdiction based on
her finding that the appellant was a reemployed annuitant when she was
terminated and, therefore, she had no right to appeal her termination to the Board .
Id., ¶ 5; see 5 U.S.C. § 3323 (b)(1) (stating that reemployed annuitants serve as
at-will employees and lack Board appeal rights over adverse actio ns). On review,
the appellant argu ed that the Board ha d jurisdiction over her appeal because her
2003 separat ion had been pursuant to a discontinued service retirement (DSR).
0378 Final Order, ¶ 5; Colbert v. Department of the Army , 54 M.S.P.R. 492 , 495
(1992) (holding that an individual’s reemployment after a DSR under the CSRS is
not as a reemployed annuitant). The Board denied the appellant’s petition for
review, noting that the SF -50 documenting he r separation show ed that she had
retired under the early -out provisions of 5 U.S.C. § 8336 (d)(2), not unde r a DSR .
0378 Final Order, ¶ 5.
¶4 Over 3 years later , HHS cancelled the SF -50 that identified the appellant’s
2003 separation as a “Retirement -Special Option ” and replaced it with a nother
SF-50, which establishes that she separated from the FDA under a DSR. Luna v.
Department of Veterans Affairs , MSPB Docket No. DA -1221 -16-0223 -W-1,
Initial Appeal File (IAF), Tab 6 at 33 -34. The appellant then filed another Board
appeal of her 2010 termination , contending that , because the new SF -50 show s
that she retired under a DSR, she was an employee when the agency removed her
and, therefore, she had the right to appeal her removal to the Board. 0378 Final
Order, ¶¶ 6-7.
¶5 By Final Order dated April 29, 2015 , the Board dismissed the appeal for
lack of jurisdiction . Id., ¶¶ 1, 20 . The Board found that, because the appellant
continued to receive a retirement annuity upon reemployment, she was a
reemployed annuitant regardless of whether or not she retired under a DSR and,
therefore, she had no right to appeal her termination to the Board. Id., ¶ 20. The
U.S. Court of Appeals for the Federal Circuit affirmed the Board ’s decision in a n
4
unpublished opinion. Luna v. Merit Systems Protection Board , 636 F. App’x 564
(Fed. Cir. Jan. 7, 2016).
¶6 In the meantime, the appellant sent a letter to President Obama in
June 2014 , stating that the Office of Personnel Management (OPM) was
unresponsive to her complaint about her retirement annuity and health benef its
being cancelled.3 IAF, Tab 6 at 14. The information provided by the appellant
was forwarded to the agency’s Chief Business Office (CBO) for further review.
Id. at 13 , 22.
¶7 In an October 22, 2014 letter, the CBO notified the appellant that she was
entitled to relief under the Federal Erroneous Retirement Co verage Co rrections
Act (FERCCA) , 5 U.S.C. § 8331 note , due to an error in her retirement plan
coverage . Id. at 22. More specifi cally, t he CBO informed the appellant that,
because she retired under a D SR in 2003 , the agency should have hired her as an
employee rather than a s a reemployed annuitant . Id. Consequently, the CBO
explained that, upon the appellant being hired in 2006, her CSRS ann uity receipts
should have stopped , the retirement system should have be come CSRS Offset
(i.e., CSRS and Social Security contributions ) rather than “straight CSRS ,” her
salary with the agency should not have been offset , and she should have been
subject to Social Security contributions because she had a break in service of over
365 days , which ended after December 31, 19 83. Id. The CBO also informed the
appellant that , although she was entitled to relief under FERCCA , she did not
have a choice of whether her retirement system would remain CSRS or change to
CSRS Offset because the law requires her to be “covered under Social Security. ”
Id.
¶8 On the same day , the CBO direct ed the agency’s Human Resources Office
(HR) to correct the appellant’s SF-50s to reflect that she should have been
3 In essence, the appellant’s claims about her retirement annuity and health benefits
being cancelled have been addressed in her earlier Board appeals and we need not
revisit those issues here.
5
covered under the CSRS Offset retirement system rather than CSRS and that she
was subject to the Federal Insurance Contributions Act ( FICA ), 26 U.S.C.
§§ 3101-3128 , governing Social Security contributions and eligibility. Id.
at 20-21. Specifically, the CBO directed HR to change the appellant’s SF -50s to
identify her retirement plan as “CSRS & FICA ” rather than CSRS , and to state
that this correction was made under FERCCA. Id. HR changed the appellant’s
SF-50s as directed by the CBO and issued the corrected SF -50s on November 5,
2014. Luna v. Department of Veterans Affairs , MSPB Docket No. DA -1221 -16-
0223 -W-2, Appeal File (W -2 AF), Tab 9 at 20 -22.
¶9 On April 16, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency had failed to correct her SF-50s
“in entirety” in retaliation for her June 2014 disclosure to Presi dent Obama , and
for disclosures she made to the agency ’s HR Director and H R Manager on
October 22, 2014. Id. at 49 -76. On January 28, 2016, OSC issued a letter
notif ying the appellant of its decision to terminat e its inquiry into her allegations
and providing her with her B oard appeal rights. Id. at 78-79.
¶10 The appellant filed a n IRA appeal with the Board and requested a hearing.
IAF, Tab 1. The appeal was dismissed without prejudice and refiled. IAF,
Tab 15, Initial Decision; W -2 AF, Tab 1. The appellant alleged that the agency
retaliated against her for her disclosures by failing to : (1) correct the errors in
her SF -50s cited by the CBO ; and (2) change the SF -50 documenting her 2010
separation to identify th at separation as a “removal” instead of a “termination.”
W-2 AF, Tab 9 at 12, Tab 11 at 12 .
¶11 Without holding a hearing, the administrative judge issued an initial
decision that dismiss ed the appeal for lack of jurisdiction. W-2 AF, Tab 1 4,
Initial Decision (ID) at 2, 17. The administrative judge determined tha t the
appellant exhausted her OSC remedy regarding her allegation that agency
officials failed to correct the errors in her SF-50s cited by the CBO in retaliation
for her disclosures to President Obama and agency HR personnel , but did not
6
exhaust her OSC r emedy regarding her allegation that the agency retaliated
against her by failing to convert her termination to a removal. ID at 9-10. The
administrative judge also found that the appellant nonfrivolously alleged that she
made a protected disclosure to President Obama, but failed to nonfrivolously
allege that her October 22, 2014 disclosures to agency personnel were protected.
ID at 11 -13. In addition, t he administrative judge found that the appellant failed
to nonfri volously allege that the agency took or failed to take a personnel action
in retaliation for her alleged whistleblowing . ID at 14 -16. Lastly, the
administrative found that the issue of whether the appellant had the right to
appeal her 2010 termination to the Board was barred under the doctrine of
collateral estoppel.4 ID at 16 -17.
¶12 The appellant has filed a petition for review.5 Petition for Review (PFR)
File, Tab 7. The agency has not filed a response.
4 Collateral estoppel, or issue preclusion, is appropriate when: (1) the issue is identical
to that involved in the prior action; (2) the issue was actually litigated in the prior
action; (3) the determination on the issue in the prior action was necessary to the
resulting judgment; and (4) the party against whom issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action, either as a party to the
earlier action or as one whose interests were otherwise fully represent ed in that action.
E.g., Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 , ¶ 22 (2012)
(citing Kroeger v. U.S. Postal Service , 865 F.2d 235 , 239 (Fed. Cir. 1988)).
5 The appellant includes numerous documents with her petition for review. PFR File,
Tab 3 at 32 -60. Some of these documents are already part of the record and thus are not
new. Compare PFR File, Tab 3 at 32 -36, 58, with IAF, Tab 6 at 35 -37, 39 -40, and
W-2 AF, Tab 9 at 22; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256
(1980) (stating that evidence that is already part of the record is not new). Also, the
documents the appellant submits on review are either undated or significantly predate
the close of the record, and she has made no showing that they were unavailable before
the record closed despite her due diligence. Therefore, we have not considered any of
the documents that the appellant submits on review. Avansino v. U.S. Pos tal Service ,
3 M.S.P.R. 211 , 214 (1980) (explaining that, under 5 C.F.R. § 1201 .115 , the Board
generally will not consider evidence submitted for the first time on review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence).
7
ANALYSIS
¶13 An appellant bears the burden of proving the Board’s jurisdiction over her
appeal by a preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(2)(A). To
establish the Board’s jurisdiction over an IRA appeal, an appellant must hav e
exhausted her administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) she made a protected disclosure described under
5 U.S.C. § 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to t ake or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A). 5 U.S.C. §§ 1214 (a)(3),
1221; see Yunus v. Department of V eterans Affairs , 242 F.3d 1367 , 1371
(Fed. Cir. 2001).
The administrative judge correctly found that the appellant exhausted her OSC
remed y rega rding her claim that the agenc y retaliated against her by failing to
correct the errors in her SF -50s pertaining to her retirement coverage .
¶14 As for the exhaustion requirement, u nder 5 U.S.C. § 1214 (a)(3), an
employee is required to exhaust her administrative remedies with OSC before
seeking corrective action from the Board in an IRA appeal.6 Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may
only consider those disclosures of information and personnel actions that the
appellant raised before OSC. Id. An appellant may demonstrate exhaustion
through her initial OSC complaint, evidence that she amended the original
complaint, including but not limited to, OSC’s determination letter and other
letters from OSC referencing any amended allegations, and the appellant’s written
responses to OSC refere ncing the amended allegations. Id.
6The appellant appears to contend on review that she is not required to prove exhaustion
because she is raising a reprisal claim as an affirmative defense to her removal. PFR
File, Tab 3 at 14 -15. This is an IRA appeal, however, and the exhaustion requirement
applies here.
8
¶15 Based on our review of the record, we find that t he administrative judge
correctly found that the appellant exhausted her remedies before OSC regarding
her allegation that agency officials retaliated against her by failing to correct the
“retirement errors ” the agency made on her SF -50. ID at 9. As noted above,
OSC’s letter notifying the appellant of her Board appeal rights shows that she
raised this allegation before OSC. IAF, Tab 6 at 78; Sutton v. Department of
Justice , 94 M.S.P.R. 4, ¶ 9 (2003) (considering OSC’s termination letters in
determining whether the appellant satisfied the exhaustion requi rement), aff’d ,
97 F. App’x 322 (Fed. Cir. 2004).
The administrative judge correctly found that the appellant failed to exhaust her
OSC remedy regarding her allegation that the agency retaliated against her by
failing to convert her 2010 termination to a r emoval.
¶16 We also agree with the administrative judge that the appellant failed to
exhaust her administrative remedies before OSC regarding her claim that the
agency retaliated against her by failing to change her SF -50 to reflect that her
2010 separation wa s a removal rather than a termination. ID at 10-11. As the
administrative judge noted, the appellant, in her OSC complaint, identifies the
retaliatory personnel action as the agency’s failure to make SF -50 corrections as
required by FERCCA. ID at 10; IAF, Tab 6 at 67 . While the appellant argues on
review that she raised the claim that the agency failed to convert her termination
to a removal during a “verbal discussion” with OSC, PFR File, Tab 3 at 16 , she
offers no evidence to support this assertion. Because the record contains no
evidence showing that the appellant advised OSC of this action , ID at 10 -11, we
agree with the administrative judge that the appellant failed to exhaust her
administrative remedies as to any alleged personnel action other than the
FERCCA corrections , ID at 10.
9
The administrative judge correctly found that the appellant failed to
nonfrivolous ly alleg e that the agency took or failed to take a personnel action in
retaliation for her alleged whistleblowing.
¶17 In any event, even assuming that the appellant exhausted her OSC remedy
regarding both alleged retaliatory actions , we find that the appellant has failed to
meet her jurisdictional burden. As previously noted, to establish the Board’s
jurisdiction over an IRA appeal, an app ellant must nonfrivolously allege that she
made a protected disclosure or engaged in protected activity that was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302 (a)(2)(A). Under 5 U.S.C. § 2302 (a)(2)( A), a
“personnel action” means: (i) an appointment; (ii) a promotion; (iii) an action
under chapter 75 of Title 5 or oth er disciplinary or corrective action; (iv) a detail,
transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a
reemployment; (viii) a performance evaluation under chapter 43 of Title 5 or
under Title 38; (ix) a decision concerning pay, be nefits, or awards, or concerning
education or training if the education or training may reasonably be expected to
lead to an appointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302 (a)(2)(A) ; (x) a decision to order psychiatric testing
or examination; (xi) the implementation or enforcement of any nondisclosure
policy, form, or agreement; and (xi i) any other si gnificant change in duties,
responsibilities, or working conditions with respect to an employee in, or
applicant for, a covered position in an agency.
¶18 The administrative judge found that neither of the alleged personnel actions
in this case appeared to be a “personnel action” under 5 U.S.C. § 2302 (a)(2)A),
inasmuch as the appellant’s employment ended in 2010 and the alleged retaliatory
actions were thus not taken while she was an employee or applica nt for
employment. ID at 14 . See Nasuti v. Merit Systems Protection Board ,
10
376 F. App’x 29, 3 4 (Fed. Cir. 2010) (nonprecedential)7 (finding that the Board
did not have jurisdiction over an IRA appeal concerning an agency action taken
after the former employee’s termination ).
¶19 In addition, r egarding the first purported personnel action —the agency’s
alleged failure to make corrections to her SF -50 pertaining to her retirement
coverage —the administrative judge noted that it is undisputed that the agency
corrected the appellant’s SF-50s to reflect the appropriate retirement category ; ID
at 14 (citing W -2 AF, Tabs 11, 13) . The administrative judge also determined
that no further corrections were required under FERCCA. ID at 15. Therefore,
the administrativ e judge found, as to this purported personnel action, the
appellant failed to nonfrivolously allege that the agency took or failed to take a
personnel action in retaliation for her alleged whistleblowing . Id. The appellant
does not challenge this finding on review, and we discern no reason to disturb it.
¶20 As for the second alleged retaliatory action —the agency’s failure to change
her SF -50 to indicate that her 2010 separation from service was a removal rather
than a termination —the administrative judge found that there is no indication that
the agency was required to change her SF -50 to identify her 2010 separation as a
removal rather than as a termination . ID at 15 -16. The administrative judge
therefore found that, regarding this purported personnel action, the appellant
failed to nonfrivolously allege that the agency took or failed to take any action
that could constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A). ID at 16.
¶21 The app ellant challenges this finding on review, arguing that the agency
failed to take a personnel action in retaliation for her whistleblowing when it did
not change her SF-50 to reflect that she was removed rather than terminated in
2010 . PFR File, Tab 3 at 26. The appellant further asserts that if the agency had
7 The Board may choose to follow nonprecedential decisions issued by the Federal
Circuit if, as here, it finds the reasoning persuasive. See, e.g. , Erlendson v. Department
of Justice , 121 M.S.P.R. 441 , ¶ 6 n.2 (2014).
11
made this change, she would have had the right to appeal her removal to the
Board . Id. at 17.
¶22 These arguments are unpersuasive. As the Federal Circuit has stated, an
SF-50 is not a personnel action in itself, but at most is merely an after -the-fact
record of a personnel action already taken. Nasuti , 376 F. App’x at 33; Scott v.
Department of the Air Force , 113 M.S.P.R. 434, ¶ 8 (2010) ( stating that , although
the issuance of an executed SF -50 is the customary documentation for a Federal
personnel action, it does not constitute the personnel action itsel f). Moreover, an
SF-50 is not a legally operative document controlling on its face an employee’s
status and rights. Scott , 113 M.S.P.R. 434, ¶ 8 (citing Grigsby v. Department of
Commerce , 729 F.2d 772 , 776 (Fed. Cir. 1984) ). Thus, contrary to the appellant’s
assertion, the agency’s failure to change her SF -50 to reflect that she was
removed in 2010 rather than terminated did not affect the appellant’s Board
appeal rights. As the Board and our reviewing court found in her prior appea l of
her termination , the appellant is not entitled to appeal her 2010 separation to the
Board because she received a CSRS annuity during her employment with the
agency . Consequently, she is not entitled to appeal her removal regardless of
whether her SF-50 identif ies her 2010 separation as a termination or a removal.
¶23 Because the appellant failed to raise a nonfrivolous allegation that the
agency took or failed to take a personnel action against her, the Board lack s
jurisdiction over th is appeal .8 See Shivaee v. Department of the Navy ,
74 M.S.P.R. 383 , 387 -89 (1997 ) (stating that, absent a “personnel action,” the
Board lacks juris diction over the appellant’s IRA appeal ). Thus, we need not
consider whether the appellant nonfrivolously alleged that she made a protected
disclosure. Id. (dismissing an IRA appeal on the ground that an appellant failed
to raise a nonfrivolous allegatio n of a personnel action, without addressing
whether he had a reasonable belief that the agency violated the law).
8 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.
12
Accordingly, we vacate the administrative judge’s analysis of whether the
appellant nonfrivolously alleged that she made a protected disclosu re. Similarly,
given our finding that the Board lacks jurisdiction over this appeal, we need not
reach the issue of whether the administrative judge properly applied collateral
estoppel, and we vacate her analysis of this issue in the initial decision.9
NOTICE OF APPEAL RIGH TS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriat e for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
9 On June 11, 2020, almost 3 years aft er the close of the record on review, the appellant
filed a motion for leave to submit additional information pertaining to her employment
history. PFR File, Tab 8. In support of her motion, the appellant asserts that she
received this information from OPM on June 6, 2020, that it was unavailable before
then, and that the information OPM previously submitted to the Board regarding her
employment history is inaccurate. Id. at 4. Even if we credit the appellant’s assertion
that the proposed evidence was un available despite her due diligence when the record
closed, there is no indication that it has any bearing on the dispositive jurisdictional
issue in the appeal. We therefore find that the appellant has not shown that the
proposed evidence is material to the outcome of her appeal, and we deny her motion.
See 5 C.F.R. §§ 1201.114 (k), 1201.115(d).).
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
within the 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.
14
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
15
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.11 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).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court 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.
Contact information for the courts of appeals can be 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 | LUNA_M_CARMEN_DA_1221_16_0223_W_2_FINAL_ORDER_2020707.pdf | 2023-04-12 | null | DA-1221 | NP |
3,292 | https://www.mspb.gov/decisions/nonprecedential/MARTIN_JANICE_S_DA_0714_20_0444_I_1_FINAL_ORDER_2020728.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANICE S. MARTIN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0714 -20-0444 -I-1
DATE: April 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chandra Baker , American Federation of Government Employees
Local 2525 , for the appellant.
Alyssa W. Silberman , Esquire, Jackson, Mississippi, for the agency.
Tijuana D. Griffin , North Little Rock , Arkansas, 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 5, 2020 initial
decision in this appeal . Initial Appeal File, Tab 28, Initial Decision ; 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 (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” signed and dated by the appellant on
February 6, 2023 , and by the agency on February 14, 2023 . PFR File, Tab 4 at 7 .
The documen t provides, among other things, that the appellant would withd raw
her MSPB 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. De partment of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017).
¶4 Here, we find that the parties have entered into a settlement agreeme nt,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 4 at 5 . Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely 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
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 ha ve 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 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.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. ____ , 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 d ays
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below :
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the 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 5SW1 2G
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 challe nge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review eit her with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, yo u may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrant s 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 | MARTIN_JANICE_S_DA_0714_20_0444_I_1_FINAL_ORDER_2020728.pdf | 2023-04-12 | null | DA-0714 | NP |
3,293 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_KENNETH_SF_0752_17_0259_I_1_FINAL_ORDER_2020756.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH THOMAS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0752 -17-0259 -I-1
DATE: April 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Thomas , Sasebo, AP, pro se.
Christopher Midgley , Fort Lee, 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 in itial decision, which
sustained his removal for misconduct . On petition for review, the appellant
contests the charge and the penalty and argues that the agency violated his right
to due process or committed harmful procedural error . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the la w to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of t he case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 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 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.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wi th an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 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:
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. 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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following 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 | THOMAS_KENNETH_SF_0752_17_0259_I_1_FINAL_ORDER_2020756.pdf | 2023-04-12 | null | SF-0752 | NP |
3,294 | https://www.mspb.gov/decisions/nonprecedential/MCDANIEL_STEVEN_CB_1208_23_0006_U_1_ORDER_ON_STAY_REQUEST_2019650.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-1
DATE: April 10, 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 .
Theodore M. Miller , Seattle, Washington, for the agency.
BEFORE
Raymond A. Limon, Member
ORDER ON STAY REQUES T
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(A), the Office of Special Counsel (OSC)
requests that the Board stay for 45 days the probationary termination 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
Mr. McDaniel 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 In its April 6, 2023 stay request, OSC alleges that it has reason able grounds
to believe that, on September 6, 2022, the Department of Veterans Affairs (VA)
terminated Mr. McDaniel from his position as Chief of Police at the Walla Walla ,
Washington medical center, during his probationary period , due to a prohibited
personnel practice. Stay Request File (SRF), Tab 1 at 5 -6. OSC alleges that
Mr. McDaniel engaged in a protected activity on May 5, 2022, when he disclosed
to the VA Office of Inspector General (OIG) that a subordinate officer had
engaged in sexual activity w hile on duty with a resident of a housing community
for homeless veterans and their families, which was run by the VA Medical
Center (VAMC) . Id. at 6, 10-11. OSC states that, upon investigation, OIG
sustained the allegations of misconduct against the acc used officer . Id. at 6.
Then , on or around June 9, 2022, OSC alleges that Mr. McDaniel made a
protected disclosure when he based the proposed removal of the accused officer
on the sexual misconduct, which was reviewed by the VAMC Director , who was
the deciding official in that action . Id. at 7, 10 -11.
¶3 OSC contends that , on September 6, 2022,2 the VA terminated
Mr. McDaniel’s appointment for having entered the medical center after hours on
April 14, 2022, while allegedly under the influence of alcohol . Id. at 8, 12 .
OSC maintains that Mr. McDaniel’s protected disclosures and activities were a
contributing factor in the decision to terminate his appointment because the
VAMC Director was aware of Mr. McDaniel’s disclosure and activity , and within
a few month s of Mr. McDaniel’s reporting the allegations to OIG and including
2 OSC incorrectly stated that the date of Mr. McDaniel’s probationary termination was
September 6, 2023. SRF, Tab 1 at 8.
3
them in his proposed removal of the accused officer , the VAMC Director
approved his termination. Id. at 11 -12. OSC also maintains that other
circumstantial evidence supports an infe rence that Mr. McDaniel’s protected
activity and disclosure were a contributing factor in his termination . Id. at 12-14.
Finally, OSC contends that the allegations of misconduct against Mr. McDaniel
mischaracterized and omitted material evidence. Id. at 8-9, 13-14. In sum, OSC
asserts that it has reasonable grounds to believe that the termination of
Mr. McDaniel was a prohibited personnel practice under 5 U.S.C. §§ 2302 (b)(8)
and (b)(9)(C).
ANALYSIS
¶4 Under 5 U.S.C. § 1214 (b)(1)(A)(i), OSC may request that any member of
the Merit Systems Protection Board order a stay of any personnel action for
45 days if OSC determines that there are re asonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a prohibited personnel
practice. Such a request shall be granted unless the Board member determines
that, under the facts and circumstances involved, such a stay would not be
appropriate. 5 U.S.C. § 1214 (b)(1)(A)(ii). OSC’s stay request need only fall
within the range of rationality to be granted, and the facts must be reviewed in the
light most fav orable to a finding of reasonable grounds to believe that a
prohibited personnel practice was (or will be) committed. See Special Counsel ex
rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6 , ¶ 9 (2010).
Deference is given to OSC’s initial determination, and a stay will be denied only
when the asserted facts and circumstances appear to make the stay request
inherently unreason able. Special Counsel v. Department of Veterans Affairs ,
50 M.S.P.R. 229, 231 (1991).
¶5 To establish a prima facie case of whistleblower reprisal , OSC must show
that the employee made a protected disclosure or engaged in protected activity
that was a contributing factor in the challenged personnel action. See Special
4
Counsel ex rel. Aran ., 115 M.S.P.R. 6, ¶ 7; see also Hooker v. Department of
Veterans Affairs , 120 M.S.P.R. 629 , ¶ 9 (2014) . A disclosure is protected under
5 U.S.C. § 2302 (b)(8) if the individual has a reasonable belief that the
information being disclosed evidences a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Linder v. Department
of Justice , 122 M.S.P.R. 14 , ¶ 12 (2014 ). The standard for evaluating the
reasonableness of the belief is whether a disinterested observer with knowle dge
of the essential facts known to and readily ascertainable to the employee could
reasonably conclude that the actions of the Government evidence one of these
types of wrongdoing. Id.
¶6 Pursuant to OSC’s stay request, it appears that Mr. McDaniel particip ated in
a protected activity , as defined by 5 U.S.C. § 2302 (b)(9)(C) , by disclosing to the
OIG that a subordinate officer engaged in sexual activity while on duty with a
resident of a housing commu nity for homeless veterans and their families, which
was run by the VA. SRF, Tab 1 at 6, 10-11. Furthermore, based on OSC’s
assertions, it appears that Mr. McDaniel reasonably believed that he was
disclosing a violation of law, rule, or regulation, under 5 U.S.C. § 2302 (b)(8),
when he based the accused officer’s proposed removal on the proven allegations
of sexual misconduct, which was reviewed by the VAMC Director . Id. at 6,
10-11.
¶7 The contributing factor element may be established through the
knowledge/timing test, i.e., that the official taking the personnel action knew of
the protected disclosure or activity and the personnel action occurred within a
period of time such that a rea sonable person could conclude that the disclosure
was a contributing factor. See Mastrullo v. Department of Labor , 123 M.S.P. R.
110, ¶ 18 (2015); Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 ,
¶ 7 (2014). According to OSC, the VAM C Director h ad knowledge of
Mr. McDaniel’s protected disclosure and activity because he was the deciding
5
official in the accused officer’s removal action, and thus reviewed the disclosure ,
as it was the basis of the removal action . SRF, Tab 1 at 11 -12.
Furthermore, OSC contends that , given his position as Director , the VAMC
Director would have likely received a copy of the OIG report which identified
Mr. McDaniel as the source of the OIG referral. Id. at 11. As for the timing
prong , the Board has recognized that a personnel action taken within
approximate ly 1 to 2 years of an appellant’ s protected disclosures satisf ies the
knowledge/timing test. S ee Mastrullo , 123 M.S.P.R. 110 , ¶ 21 . OSC asserts that
Mr. McDaniel’s probationary termination occurred within 4 months of his report
to OIG and within 3 months of the notice of proposed removal of the accused
officer . SRF, Tab 1 at 6-8, 10-12.
¶8 In addition, OSC contends that attendant circumstances su ggest that
Mr. McDaniel’s protected disclosure and/or activity was a contributing factor in
the decision to terminate him during his probationary period. Id. at 12 -14.
In particular, OSC alleges that the VAMC Director linked Mr. McDaniel’s
probationary termination to his p rotected disclosure and activity , “speculating”
that the officers mistrusted Mr. McDaniel because of the sexual misconduct
investigation. Id. at 12 -13. According to OSC, this is corroborated by the VA’s
interim Associate Director of Operations, who stated that the VAMC Director
wanted to terminate Mr. McDaniel for poor officer moral e, not because of any
alleged intoxication. Id. Furthermore, as noted, OSC alleges that several key
pieces of evidence were omitted from the repor t of the investigation into
Mr. McDaniel ’s alleged misconduct , which appear s to exonerate him from the
conduct for which he was supposedly terminated . Id. at 13 -14.
¶9 Considering the deference that generally should be afforded to OSC in the
context of an initial stay request, and the assertions made in its stay request,
I find that there are reasonable grounds to bel ieve that the VA terminated
Mr. McDaniel’s appointment based on his p rotected disclosure and protected
activity in violation of 5 U.S.C. § 2302 (b)(8) and (b)(9)(C).
6
ORDER
¶10 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45 -day stay of Mr. McDaniel’s probationary termination is
GRANTED. The stay shall be in effect from April 10, 2023 , through and
including May 24, 2023 . It is further ORDERED that:
(1) During the pendency of this stay, the relator shall be placed in the
position the relator held prior to the termination of his appointment
on September 6, 2022 ;
(2) The agency shall not effect any changes in the relator’s duties or
responsibilities that are inconsistent with the relator’s salary or grade
level, or i mpose upon the relator any requirement which is not
required of other employees of comparable position, salary, or grade
level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied wit h
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 b e received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before May 9, 2023 ; and
7
(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 May 16, 2023 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCDANIEL_STEVEN_CB_1208_23_0006_U_1_ORDER_ON_STAY_REQUEST_2019650.pdf | 2023-04-10 | null | CB-1208 | NP |
3,295 | https://www.mspb.gov/decisions/nonprecedential/ROGERS_VIRGIL_DC_0752_17_0123_I_1_FINAL_ORDER_2019654.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VIRGIL ROGERS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -17-0123 -I-1
DATE: April 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracey A. Kinslow , Esquire, Nashville, Tennessee, for the appellant.
Samuel Hill , Esquire, FPO, AE , 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
dismissed the appellant’s appeal alleging that he had been involuntarily
separated/demoted from his position . On petition for review, the appellant
disputes the administrative judge’s finding that he failed to raise nonfrivolous
allegations that he involuntarily resigned from the Navy based on the agency’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
alleged discriminatory, unlawful, and unconstitutional acts toward him and his
children on May 27 -28, 2015. Generally, we grant petitions such as this one on ly
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; t he administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that 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 AFFIR M 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 wit h which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Meri t
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation an d the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the la w applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possib le choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of iss uance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U. S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively , you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such reques t with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
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.
6
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROGERS_VIRGIL_DC_0752_17_0123_I_1_FINAL_ORDER_2019654.pdf | 2023-04-10 | null | DC-0752 | NP |
3,296 | https://www.mspb.gov/decisions/nonprecedential/LIVINGSTON_WILLIAM_N_DC_0752_17_0142_I_1_FINAL_ORDER_2019657.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM N. LIVINGSTO N,
Appellant,
v.
FEDERAL RESERVE SYST EM,
Agency.
DOCKET NUMBER
DC-0752 -17-0142 -I-1
DATE: April 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David H. Shapiro , Esquire, and J. Cathryne Watson , Esquire, Washington,
D.C., for the appellant.
Anglee Agarwal , Esquire, and Linda Ajawara , Esquire, 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 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 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
sustained the agency’s decision suspending him for 30 days . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petition er’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 herein to incorporate the correct standard o f proof for a
lack of candor charge , we AFFIRM the i nitial decision.
BACKGROUND
¶2 After a conversation with an acquaintance from his neighborhood, the
appellant forwarded the acquaintance’s daughter’s résumé and cover letter to his
subordinate responsible fo r overseeing the intern hiring process for his division ,
and instructed the subordinate to add the acquaintance’s daughter’s name to the
candidate roster list for consideration for a paid intern position within his division
for the summer of 2016. Initial Appeal File ( IAF), Tab 4 at 22; Tab 5 at 23;
Tab 16 at 3 . The position was eventually offered to the acquaintance’s daughter ,
who accepted the position. IAF, Tab 14 at 17. By letter date d July 25, 2016, the
agency proposed suspending the appellant with out pay for 30 calendar days based
on the charges of conduct unbecoming a supervisor and lack of candor related to
3
the hiring of the appellant’s acquaintance’s daughter for the paid internship . IAF,
Tab 5 at 8 -12. By letter dated October 3, 2016, the dec iding official upheld both
charges and all speci fications, and sustained the 30 -day suspension. IAF, Tab 4
at 5-8.
¶3 The appellant filed a timely appeal with the Board challenging his
suspension. IAF, Tab 1. Following the appellant’s requested hearing, the
administrative judge issued an initial decision sustaining both charges and all
specifications, finding that the a gency proved both charges by a preponderance of
the evidence. IAF, Tab 20, Initial Decision (ID) at 1 -17. The administrative
judge also determined that the agency established a nexus between the charged
misconduct and the efficiency of the service and th at the penalty of a 30 -day
suspension was reasonable, and consequently affirmed the 30 -day suspension. ID
at 17 -19. The appellant has filed a petition for review and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 On petition for rev iew, the appellant argues that he did not knowingly
misrepresent or conceal any information , and asserts that the agency failed to
meet its burden of proving both specifications of the charge. PFR File, Tab 1
at 12-13. The conduct unbecoming a supervisor charge contained two
specifications. IAF, Tab 12 at 8. The first specification stated that the appellant
granted the acquaintance’s daughter an unauthorized preference over another
candidate for t he 2016 summer intern position. Id. The second specification
stated that the appellant induced his subordinate to place the acquaintance’s
daughter at the top of the intern candidate roster, resulting in her selection for the
position. Id. The first sp ecification of the lack of candor charge stated that the
appellant contacted the Deputy Chief Administrative Officer (“Deputy Chief”) —
one of the employees responsible for coordinating the paid intern hiring
process —regarding the acquaintance’s daughter’s a pplication status, but withheld
4
information concerning his relationship and prior communications with her father.
Id. The second lack of candor specification charged that the appellant
inaccurately informed the Deputy Chief that he had been contacted by the
acquaintance’s daughter regarding the intern position even though she had never
contacted the appellant and the appellant had only communicated with her father.
Id. at 8-9.
¶5 As the administrative judge correctly noted, a charge of lack of candor is a
flexible charge, and unlike a charge of falsification, it does not requi re proof of
intent to deceive. ID at 14; see Ludlum v. Department of Justice , 278 F.3d 1280 ,
1283 -84 (2002) . In Fargnoli v. Department of Commerce , 123 M.S.P.R. 330
(2016), the Board clarified the correct legal standard for a lack of candor charge.
Relying on U.S. Court of Appeals for the Federal Circuit and Board precedent,
the Board held that lack of candor requires proof of the following elements:
(1) that the e mployee gave incorrect or incomplete information; and (2) that he
did so knowingly.3 Id., ¶ 17. The administrative judge did not apply Fargnoli in
assessing this charge, relying instead on the standard described by the Federal
Circuit in Ludlum . ID at 1 4, 16. We turn now to review the administrative
judge’s findings in light of the Board decision in Fargnoli .
¶6 In concluding that the agency proved the first specification of the lack of
candor charge, the administrative judge cited the testimony of the D eputy Chief ,
who testified that he informed the appellant that it was not part of the normal
recruiting process for a supervisor to request a potential candidate’s email,
especially when that candidate had not expressed interest in applying to that
supervi sor’s division/branch. IAF, Tab 17, Hearing Compact Disc (HCD)
3 In Parkinson v. Department of Justice , 815 F.3d 757 (Fed. Cir. 2016) , the Federal
Circuit’s decision relied upon the Board ’s decision in Fargnoli . The case was
subsequently vacated in part and remanded on en banc review, but the portion of the
panel decision identifying the correct legal standard for a lack of candor charge was left
undisturbed. Parkinson v. Department of Justice , 874 F.3d 710 , 712 (2017); see
Ludlum , 278 F.3d at 1285 -86.
5
(testimony of the Deputy Chief); ID at 15. Even after being placed on notice of
the Deputy Chief’s concerns about the appellant’s level of involvement in the
intern hiring process on the cand idate’s behalf, the appellant still failed to inform
the Deputy Chief that the candidate’s father lived in his neighborhood and had
approached him about a job for his daughter . HCD (testimony of the Deputy
Chief). Additionally, although the administrativ e judge concluded that the
Deputy Chief never specifically elicited information from the appellant
concerning his relationship and interactions with the candidate’s father, the
Deputy Chief testified that the appellant should have known that this informati on
would have been germane and relevant to him, and the administrative judge
credited this testimony in reaching her conclusion that the appellant’s statements
to the Deputy Chief were not fully forthcoming and candid. Id.; ID at 15 -16.
¶7 Although the app ellant has argued on petition for review that he did not
consider his conversations with the applicant’s father to be “material,” Fargnoli
requires only that the appellant provided incomplete information, and that he did
so knowingly. Fargnoli , 123 M.S.P.R. 330 , ¶17. As previously noted, unlike a
charge of falsification, a lack of candor charge does not require a showing of
intent to deceive or mislead. See Ludlum , 278 F.3d at 1284-85 (noting that lack
of candor need not involve an affirmative misrepresentation, but instead “may
involve a failure to disclose something that, in the circumstances, should have
been disclosed to make the statement accurate and complete, ” and that an intent
to deceive is not a separate element of a lack of candor charge ); cf. Boo v.
Department of Homeland Security , 122 M.S.P.R. 100 , ¶ 14 (2014) (distinguishing
a lack of candor charge from charges of falsification, misrepresentation, or lying).
Although the appellant argues that he could not have known that information
concerning his relationship with the applicant’s father was material, the record
and common sense belies that assertion. As the Deputy Chief noted in his
testimony, the information concerning the appellant’s relationship with the
applicant’s father would have been relevant and germane to him, and the
6
appellant’s disclosure of the preexisting relationship would have spurred
additional questions from the Deputy Chief about why the appellant was pursuing
a candidate who had not even applied to the appellant’ s division. HCD
(testimony of the Deputy Chief). Additionally, on cross examination, the
deciding official flatly rejected the notion that the appellant could have believed
that his preexisting relationship with the applicant’s father would not have been
material information that he needed to share with the Deputy Chief or his
supervisor. HCD (testimony of the deciding official). Finally, in the proposal
letter, the proposing official noted that the appellant received training in 2013
concerning prohibi ted personnel practices, such as the granting of unauthorized
preferences, and so the appellant was on notice that such behavior was prohibited.
IAF, Tab 5 at 10. The omission of such relevant and material information in this
case constitutes a “failure to be forthright” sufficient to constitute a “knowing”
omission, and to meet the standard for misconduct discussed in Fargnoli .
Fargnoli , 123 M.S.P.R. 330 , ¶ 17 ( quoting Parkinson , 815 F.3d at 766 -67).
Accordingly, we see no reason to disturb the administrative judge’s findings
concerning the first specification of the lack of candor charge.
¶8 Rega rding the second specification, the administrative judge pointed to the
email sent by the appellant to the Deputy Chief stating “we were contacted by
[the applicant ]” concerning interest in the 2016 summer intern program, which
the appellant knew to be untrue because he had been contacte d by the applicant’s
father, not the applicant, during the relevant times. ID at 15 -17; IAF, Tab 5 at 32;
HCD (testimony of the Deputy Chief). The administrative judge also cited the
testimony of the Deputy Chief stating that if he had known that the app ellant had
only been in contact with the applicant’s father and not the applicant herself , he
would have responded differently to the appellant’s requests to consider the
applicant for the appellant’s division even though she had not expressed interest
in it. ID at 8 -9, 16. Consequently, the administrative judge concluded that the
appellant’s mischaracterization of these facts established that he was untruthful in
7
his statements and unforthcoming in his interact ions with the Deputy Chief. ID
at 16; cf. E rwin v. Department of the Army , 123 M.S.P.R. 565 , ¶ 6 (2016)
(separate opinion of Chairman Gru ndmann) (concluding that the agency failed to
prove a charge of lack of candor when it provided no evidence that the appellant
knowingly gave incorrect or incompl ete information, withheld information, and
the appellant’s statement was not a misrepresentation).
¶9 The administrative judge made comprehensive credibility determinations
and factual findings in reaching her conclusion that the appellant withheld
informatio n from the Deputy Chief regarding his relationship with the applicant’s
father, and incorrectly informed the Deputy Chief that he had been contacted by
the applicant herself . ID at 14 -16; cf. Fargnoli , 123 M.S.P.R. 330 , ¶ 18
(remanding for further analysis on the lack of candor charge when the
administrative judge made no findings as to whether the appellant knowingly
gave incorrect or incomplete information). Accordingly, we find no basis for
disturbing the administrative judge’s findings concerning either specification of
the lack of can dor charge. We therefore modify the initial decision to incorporate
the proper legal standard under Fargnoli for anal yzing a lack of candor charge,
and affirm the initial decision as modified by this Final Order .
NOTICE OF APPEAL RIGHTS4
The initial decis ion, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review righ ts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represe nt a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in 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/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations 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 t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction.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 appeal s of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain 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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LIVINGSTON_WILLIAM_N_DC_0752_17_0142_I_1_FINAL_ORDER_2019657.pdf | 2023-04-10 | null | DC-0752 | NP |
3,297 | https://www.mspb.gov/decisions/nonprecedential/PETTY_FLORENCE_D_DC_0752_16_0511_I_1_FINAL_ORDER_2019786.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FLORENCE D. PETTY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -16-0511 -I-1
DATE: April 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Florence D. Petty , Capitol Heights, Maryland, pro se.
LaDonna L. Griffith -Lesesne , Esquire, Landover, Maryland, 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 the appeal as barred by the doctrines of res judicata and collateral
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
estoppel and as untimely filed . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evi dence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1 201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED by this Final Order to clarify that the appellant’s appeal should have
been dismissed as barred by the doctrine of collateral estoppel and as untimely
filed , we AFFIRM the initial decision.
BACKGROUND
¶2 The background of this ca se is set forth in detail in Petty v. U.S. Postal
Service , MSPB Docket No. DC -3330 -16-0166 -I-1, Initial Appeal File (0166 IAF ).
The appellant was employed by the agen cy as a Management Analyst, EAS -19, in
Largo, Maryland. 0166 IAF, Tab 5 at 24, 86 . On J uly 1, 2014, the appellant was
placed on a Success Improvement Plan (SIP) to address performance issues . Id.
at 131-33. After failing to successfully perform under the SIP, the agency issued
a Notice of Proposed Letter of Warning in Lieu of a 14 -Day Time -Off Suspension
(LOW). Id. at 81 -84. The appellant requested mediation regarding the LOW. Id.
at 79 . As a result of the mediation, the appellant and the agency entered into a
settlement agreement wherein the agency agreed to hold discipline in abeyance
for 90 days to allow the appellant to look for a different position. Id. at 72 -73. If
3
the appellant were unable to secure a different position at the end of the 90 days,
the settlement agreement dictated that she would agree to outplacement by the
agency at the highest level she was deemed qualified to fill. Id.
¶3 The appellant failed to obtain a new position within the 90 days, and on
May 6, 2015, the agency notified her that it was reassigning her to the position of
Secret ary, EAS -11, in the Operational Supplies & M ail Transport Equipment
Category Management Center, effective May 16, 2015.3 Id. at 53. Two months
later , the appellant filed a formal equal employment opportunity (EEO) complaint
alleging that her reassignment was based on race and age discrimination and was
in retaliation for her having engaged in prior EEO activity. Id. at 19. On
October 15, 2015, the agency issued its final decision on the appellant’s
complaint finding no discrimination. Id. at 19-48.
¶4 The appellant filed an appeal with the Board alleging an involuntary
reduction in grade , pay, or band due to alleged age and race discrimination ,
retaliation for prior EEO activity, and her status as a veteran enti tled to a 10 -point
preference. 0166 IAF , Tab 1 at 6, 9 -12. The agency argued that the Board lacked
jurisdiction over the appeal because the appellant’s reduction in grade was a
product of a settlement agreement into which she voluntarily entered. 0166 IAF ,
Tab 5 at 7-13. The administrative jud ge informed the appellant of her
jurisdictional burden and ordered her to show cause why her appeal should not be
dismi ssed for lack of jurisdiction. 0166 IAF , Tab 6 at 3-5. The appellant
responded by arguing that she signed the negotiated settlement agreement under
duress because it was offered as an alternative to a proposed 14 -day suspension.
0166 IAF , Tab 11 at 2-4.
¶5 On February 25, 2016, the administrative judge issued an initial decision
dismissing the appeal for la ck of jurisdiction because the appellant failed to make
a non frivolous allegation that her execution of the settlement agreement , which
3 The Postal Service Form 50 commemorating this action indicates that the effective
date was June 27, 2015. 0166 IAF, Tab 5 at 51.
4
led to her acceptance of the reduction in grade , was the product of agency
coercion or misinformation. Petty v. U.S. Postal Service , MSPB Docket No.
DC-3330 -16-0166 -I-1, Initial Decision (Feb. 25, 2016); 0166 IAF , Tab 12, Initial
Decision (0166 Initial Decision) at 2-6. The appellant did not file a petition for
review with the B oard, and the initial decision became final on March 31, 2016.
Id. at 7.
¶6 Less than 1 month after that initial decision became final, the appellant filed
the instant appeal with the Board. Petty v. U.S. Postal Service , MSPB Docket No.
DC-0752 -16-0511 -I-1, Initial Appeal File ( 0511 IAF), Tab 1. With minimal
detail, the appellant challenge s her reducti on in grade for a second time. Id.
at 2-5. The agency filed a motion to dismiss the appeal as barred by the doctrines
of res judicata and collateral estoppel, for lack of jurisdiction, and as untimely.
0511 IAF, Tab 4 at 7-9. The appellant responded, requesting “an Appeal” and a
review of her case and challenging the merits of the reassignment. 0511 IAF,
Tab 8 at 4 -14. The administrative judge ordered the appellant to show cause why
the appeal should not be dismissed on re s judicata, collateral estoppel, or
timeliness grounds , but the appellant’s response addressed only the question of
timeliness. 0511 IAF, Tab 13 at 1-6, Tab 14 at 2 -4.
¶7 Without a hearing , the administrative judge issued an initial decision
dismissing the a ppeal as barred by res judicata and collateral estoppel and as
untimely. 0511 IAF, Tab 17, Initial Decision (ID) at 2-4. The administrative
judge determined that the appellant raised the same issues and claims in the
instant appeal that were raised in he r prior case and that all of the elements were
satisfied for the application of res judicata.4 ID at 3. The administr ative judge
4 Neither the order to show cause nor the initial decision provided notice of the
elements of collateral estoppel. 0511 IAF, Tab 13 at 1 -2; ID at 2 -3. Nonetheless, this
lack of notice was cured by an agency submission, wherein it explained the elements of
collateral estoppel and provided notice of the appropriate analysis. 0511 IAF, Tab 4
at 8; see Parker v. Department of Housing and Urban Development , 106 M.S.P.R. 329 ,
¶ 8 (2007) .
5
also found that the appeal was untimely and that the appellant failed to
demonstrate good cause for the untimely filing. ID at 3-4.
¶8 The appellant has filed a petition for review in which she does not address
the issues of res judicata, collateral estoppel, or timeliness but, instead,
challenges the agency’s concerns regarding her performance prior to her
reassignment and its action s regarding the SIP. Petty v. U.S. Postal Service ,
MSPB Docket No. DC-0752 -16-0511 -I-1, Petition for Review (PFR) File, Tab 1
at 1-5. The agency has filed in opposition to the appellant’s petition arguing that
she failed to demonstrate any error in the initial decision. PFR File, Tab 3 at 8.
DISCUSSION OF ARGUME NTS ON REVIEW
The instant appeal is barred by collateral estoppel.
¶9 The doctrines of res judicata (claim preclusion) and collateral estoppel
(issue preclusion) both concern the preclusive effect of a prior adjudication and
are based on similar policy concern s—to “relieve parties of the cost and vexation
of multiple lawsuit s, conserve judicial resources, and, by preventing in consistent
decisions, encourage reliance on adjudication.” Peartree v. U.S. Postal Service ,
66 M.S.P.R. 332 , 336 -37 (1995) . Here, the administrative judge found that the
appellant’s reduction in grade claim was barred by res judicata and collateral
estoppel but only provided an analysis under res judicata . ID at 3. We find thi s
to be an error, as a dismissal of a prior case for lack of subject matter jurisdiction
cannot be given res judicata effect. Hau v. Department of Homeland Security ,
123 M.S.P.R. 620 , ¶ 9 (2016) , aff’d sub nom. Bryant v. Merit Systems Protection
Board , 878 F.3d 1320 (Fed. Cir. 2017).
¶10 Unlike res judicata, however, the doctrine of collateral estoppel can be used
to determine whether a previous adjudication of a jurisdictional issue precludes
its relitigation. McNeil v. Department of Defense , 100 M.S.P.R. 146 , ¶¶ 15 -16
(2005). Collateral estoppel, or issue preclusion, is appropriate when: (1) the
issue is identical to that involved in the prior action; (2) the issue was actually
6
litigated in the prior action; (3) the determination on the issue in the prior action
was necessary to the resulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or one whose interests were
otherwise fully represented in that action. Kroeger v. U.S. Postal Serv ice,
865 F.2d 235 , 239 (Fed. Cir. 1988); McNeil , 100 M.S.P.R. 146 , ¶ 15. A dismissal
for lack of jurisdiction generally precludes a second action in the same forum
seeking to relitigate the same jurisdictional issue. Coats v. U.S. Postal Service ,
111 M.S.P.R. 268 , ¶ 8 (2009).
¶11 The elements of collateral estoppel are present in this appeal. The question
of whether the Board has j urisdiction over a reduction in grade that was the result
of a voluntarily entered into settlement agreement is identical to the issue decided
in the previous case. 0166 I nitial Decision at 2-6. The parties actually litigated
the issue in the previous ac tion, the administrative judge issued jurisdictional
order s informing the appellant of her jurisdiction al burden , and both parties
subm itted pleadings on that issue. 0166 IAF , Tabs 5 -11. The resolution of that
question was necessary to the resulting judg ment because the administrative judge
dismissed the appeal for lack of jurisdiction, and the appellant was a party fully
represented by c ounsel in the previous action. 0166 IAF , Tab 4 at 2 ; 0166 Initial
Decision at 6. Because the four criteria for the ap plication of collateral estoppel
are met, we find that the appellant is precluded from relitigating the previously
decided jurisdic tional issue. E.g., McNeil , 100 M.S.P.R. 146 , ¶¶ 15 -16. Although
we agree with the administrative judge’s ultimate concl usion that the claim is
barred, we find that it is barred by collateral estoppel , rather than by res judicata .
We find the administrative judge’s error in this regard to be harmless. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
7
The appeal was untimely f iled with no good cause shown for the delay.
¶12 The administrative judge also dismissed the appeal as untimely. ID at 4.
The appellant does not challenge this ruling on review. The appellant’s appeal
documents below indicate that the action being appealed was her reduction in
grade , which was effective on June 27 , 2015 , at the latest . 0511 IAF, Tab 1
at 2-6; 0166 IAF , Tab 5 at 51, 53 . The Board requires that appeals must be filed
within 30 days of the effective date of the action being appealed, or 30 days after
the date of receipt of the agency’s decision, which ever is later. 5 C.F.R.
§ 1201.22 (b). The Board will waive its filing deadline only upon a showing of
good cause for the de lay. 5 C.F.R. § 1201.114 (g). Here, the administrative judge
determined that the appellant’s instant appeal, filed on April 18, 2016, was
untimely and that she failed to establish good cause for the delay. ID at 4. After
our review of the record, we agree with the administrative judge and, therefore,
find no basis to disturb t hese findings. Based on the foregoing, we affirm the
initial decision as modified and deny the appellant’s pet ition for review.
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 m ay obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to fil e. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
5 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
this final decision, you should immediately review the law applicable t o your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of re view
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil act ion with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit 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 d ecision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of f ees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review 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
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 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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 | PETTY_FLORENCE_D_DC_0752_16_0511_I_1_FINAL_ORDER_2019786.pdf | 2023-04-10 | null | DC-0752 | NP |
3,298 | https://www.mspb.gov/decisions/nonprecedential/SKINNER_SIDNEY_DEANDRE_DC_0752_21_0083_I_1_FINAL_ORDER_2019808.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SIDNEY DEANDRE SKINN ER, JR.,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -21-0083 -I-1
DATE: April 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sidney DeAndre Skinner, J r., Hampton, Virginia, pro se .
Kiley Anne Holshey , Esquire, Norfolk, Virginia, 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 9, 2021 initial decision
in this appeal. Initial Appeal File, Tab 13, Initial Decision ; 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 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
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTL EMENT AGREEMENT AND RELEASE OF ALL CLAIMS”
signed and dated by the appellant on February 9, 2023, and by the agency on
February 13, 2023 . PFR File, Tab 3 at 8 . The document provides, among other
things, that the appellant w ould withdraw his MSPB 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 int o 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, an d agree that the agreement will be entered into the record
for enforcement by the Board. PFR File, Tab 3 at 5. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶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 RIGHT S
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
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 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.
(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
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repr esentative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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 yo u submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 205 07
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 original statutory provision that provided for 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
If you are 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 | SKINNER_SIDNEY_DEANDRE_DC_0752_21_0083_I_1_FINAL_ORDER_2019808.pdf | 2023-04-10 | null | DC-0752 | NP |
3,299 | https://www.mspb.gov/decisions/nonprecedential/JENNINGS_KELLY_STEPHEN_AT_4324_11_0442_B_1_FINAL_ORDER_2019827.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KELLY STEPHEN JENNIN GS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
AT-4324 -11-0442 -B-1
DATE: April 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew J. Dowd , Esquire, Washington, D.C., for the appellant.
Robert W. Hughes, Jr., Esquire, Duluth, Georgia, for the appellant.
John Benson , Boston, Massachusetts, for the agency.
Meeka S. Drayton , Esquire, Baltimore, Maryland, for the agency.
Owen Keegan , Esquire , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the remand initial decision, which ordered corrective
action in this appeal filed 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 these only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regula tions, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we DENY the appellant’s petition for
review , GRANT the agency’s cross petition for rev iew, and AFFIRM the remand
initial decision AS MODIFIED. Except as expressly MODIFIED by this Final
Order to find that the appellant did not prove his USERRA claim as it relates to
the denial of annual and sick leave , we AFFIRM the remand initial decision .
BACKGROUND
¶2 This case has a long procedural history that is set forth in detail in
Jennings v. Social Security Administration , 123 M.S.P.R. 577, ¶¶ 2-13 (2016). In
essence, the agency filed a complaint in 2007 under 5 U.S.C. § 7521 seeking to
remove the appellant from his administrative law judge position based on several
charges related to the allegation that , for 3 years , the appellant was in a
continuous active duty status with the U.S. Army Reserves, for which he was
paid, while simultaneously being employed and paid by the agency . Id., ¶ 2. The
3
Board ultimately found good cause to remov e the appellant , and that decision was
affirmed by the U.S. Court of Appeals for the Federal Circuit . Id., ¶ 3.
¶3 While the above case was pending before the Board , the agency determined
that the appellant should not have been compensated for his work for the agency
while he was on active duty with the military . It therefore amended his time and
attendance records to retroactively place him on leave without pay (LWOP) for
the active -duty period, and notified him of a $427,784.00 debt he owed to the
agency for the resulting overpayment . Id., ¶ 4. The appellant filed a 2011 Board
appeal challenging that action and alleging that the agency denied him certain
rights and benefits under USERRA , including the right to reemployment,
continuation of employment, and the use of military, annual, and sick leave. Id.,
¶ 5. The appellant also asser ted that the agency should have follow ed the
procedures set forth at 5 U.S.C. § 7521 before retroactively placing him on
LWOP because that action constituted a suspension and a reduction in pay, and
that the Board should reopen his removal case to adjudicate a USERRA
affirmative defense, reverse his removal , and reinstate him . Id., ¶¶ 5-6.
¶4 After a hearing, an administrative law judge ruled that the appellant’s
USERRA affirmative defense in connection with his removal was barred by the
doctrine of res judicata, and that the agency’s actions were not covered under
5 U.S.C. § 7521 ; thus, the agency did not need to first file a complaint and ha ve
the Board find good cause before placing the appellant on LWOP and taking
related actions . Id., ¶¶ 7-8. The administrative law judge also found that,
although the agency generally proved by preponderant evidence that it would
have placed the ap pellant on LWOP and impose d the overpayment for a
legitimate reason, t he appellant nevertheless was entitled under USERRA to a
limited modification of his placement on LWOP to credit him with the days and
hours in which he was on military leave and approve d annual or sick leave. Id.,
¶¶ 9-11, 13. Thus, th e administrative law judge ordered the agency to recalculate
the debt based on salary overpayment to credit the appellant with all such hours
4
of leave and all monetary benefits that would accrue from being in a pay status
during such periods of leave, including the hours of annual and sick leave that
accrued when he was, or should have been, in a paid leave status. Id., ¶ 13.
¶5 On review of that decision, t he Board affirmed the finding that res judicata
precluded consideration of the appellant’s claim that he should be reemployed
and reinstated, vacated the remainder of the initial decision, and remanded for
further adjudication . Id., ¶¶ 1, 25-28. The Board noted that an administrative law
judge who alleges a constructive removal or other action in violation of
5 U.S.C. § 7521 may file a complaint with the Board under 5 C.F.R. § 1201.142 ,
and such a complaint shall be adjudicated in the same manner as agency
complaints seeking actions against administrative law judges. Id., ¶ 27. The
Board then ordered the administrative law judge to address two initial questions:
(a) does this case involve an action under 5 U.S.C. § 7521 ; and (b) if so, is there
good cause for such an action? Id., ¶ 28. The Board noted that, after addressing
these questions, the administrative law judge may readopt, if appropriate, he r
findings addressing the appellant’s USERRA claims. Id. The Board further held
that the administrative law judge may address on remand the agency’s contention s
in its cross petition for review , including its claim that the Board does not have
the authority to re view the validity or amount of the appellant’s debt to the
agency , which had already been decided by an administrative law judge with the
Department of Health and Human Service’s Departmental Appeals Board (DAB) .
Id., ¶¶ 4, 29-30.
¶6 On remand, the administrative law judge has found that this case d oes not
involve a “suspension ,” as defined for purposes of 5 U.S.C. § 7521 , or a
constructive suspension because the agency did not bar the appellant from
reporting to work , prevent him from performing his duties during the 3 -year
period in question , or ca use his absence from the workplace ; rather, his absence
from the workplace was voluntary . Remand File, Tab 9, Remand Initial Decision
(RID) at 23-24. The administrative law judge also held that the appellant was not
5
“without pay” during the period in que stion because he was still paid his full
Government salary from the Department of the Army, and thus “still was paid a
full day’s Government pay for a full day’s Government work, albeit he spent days
performing duties for both the Army and SSA.” RI D at 24 . The administrative
law judge distinguished Board cases involving involuntary placements on LWOP
made within the context of retirement matters , which were found to be
suspensions, finding that the agencies in those cases actively communicated
erroneous o r misleading information to the employees indicating that they would
not be in an unpaid status after their retirement date, but nevertheless placed them
in that status , and the employees in those cases were without duties during the
periods in question, u nlike the appellant, who was not in a “status without duties”
under 5 U.S.C. § 7501 (2). RID at 23 -24. Further, the administrative law judge
found that this case does not involve a “reduction in p ay” because Board
precedent provides that withholding pay based on an employee’s placement in an
absent without leave or LWOP status does not constitute an appealable reduction
in the rate of basic pay. RID at 25-26.
¶7 Regarding the agency’s cross petition for review, the administrative law
judge held that the Board had the authority to review the validity and amount of
the debt because the assessment of the components of the alleged salary
overpayment was integral to the disposition of the un derlying USERRA claim .
RID at 26-28. She also found that the doctrine of collateral estoppel did not
apply to the DAB decision because the appellant in th at proceeding “did not have
a full and fair opportunity to litigate issues raised under USERRA that affect the
amount of the salary overpayment or the issue of whether he elected to use other
leave pursuant to 5 C.F.R. § 353.106 (a).” RID at 29 -33. Finally, the
admin istrative law judge adopted and incorporated into the remand initial
decision her prior findings that the agency violated USERRA when it
retroactively processed personnel actions that resulted in the denial of military,
annual, and sick leave to which the appellant was entit led and the denial of
6
benefits properly accruing to him when he was entitled to be in a pay status as a
result of using such leave . RID at 34. She therefore ordered the agency to
modify or replace the personnel actions placing the appellant on LWOP for t he
period between January 2, 2003, and January 17, 2006, with personnel actions
that reflect the days and hours during that period in which he was on military ,
annual, and sick leave, and to recalculate the debt for salary overpayment to
credit him with al l such hours of leave and all monetary benefits that would
accrue from being in a pay status during such periods of leave . RID at 35.
ANALYSIS
The agency did not suspend the appellant under 5 U.S.C. § 7521 (b)(2) .
¶8 The appellant asserts on review that the agency’ s action retroacti vely
placing him on LWOP constituted a “suspension” under 5 U.S.C. § 7521 (b)(2),
and required the agency to first file a complaint with the Board and have the
Board find good cause before t he action could be taken .2 Petition for Review
(PFR) File, Tab 1 at 10, 12. In support of this argument, the appellant asserts that
the agency’s August 14, 2007 complaint seeking his removal was based on
disciplinary reasons, and that the agency used one of the charges supporting that
complaint and prohibiting improper dual employment to retroactively amend his
time and attendance records . Id. at 10, 12. In further support, h e relies upon the
Board’s decisions in Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , (2016),
Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 (2014), and McHenry v. U.S.
Postal Service , 121 M.S.P.R. 80 (2014) . Id. at 10-12.
¶9 An action may be taken against an administrative law judge only for good
cause established and determined by the Board on the record after an opportunity
for a hearin g. 5 U.S.C. § 7521 (a). Actions covered by section 7521 include a
removal, a suspension, a reduction in grade or pay, and a furlough of 30 days or
less. 5 U.S.C. § 7521 (b). “Suspension,” for purposes of section 7521(b)(2),
2 The agency has filed a response to the petition for review. PFR File, Tab 3.
7
means the “placing of an employee, for disciplinary reasons, in a temporary status
without duties and pay.” 5 U.S.C. §§ 7501 (2), 7511(a)(2); see Lawson v
Department of Health and Human Services , 64 M.S.P.R. 673 , 680 (1994)
(refere ncing 5 U.S.C. § 7511 to define the phrase “reduction in pay” as used in
5 U.S.C. § 7521 (b)(4)) , aff’d , 73 F.3d 377 (Fed. Cir. 1995) (Tabl e); see also
Butler v. Social Security Administration , 331 F.3d 1368 , 1372 (Fed. Cir. 2003)
(requiring that 5 U.S.C. §§ 7512 and 7521, which describe the actions covered
under the Board’s jurisdiction, be construed consistently). The placement of an
employee in an enforced leave status for more than 14 days is an appealable
suspension. Martin , 123 M.S.P.R. 189, ¶ 9.
¶10 Here, t he administrative law judge f ound that the agency did not suspend
the appellant because it did not bar h im from reporting to work, prevent him from
performing his duties, or cause his absence from the workplace; rather, his
absence was voluntary. RID at 23 -24. Moreover, she found that the appellant
was not “without pay” during the period in quest ion because he was still being
paid a full salary by the Department of the Army based on his active duty status .
RID at 24. She found that she did not need to address whether the action was
taken “for disciplinary reasons. ” Id. Thus, the appellant’s as sertion on review
regarding the pu rported disciplinary reason s for his placement on LWOP is
misplaced . In any event, we agree with the administrative law judge that the
agency’s action retroactively placing the appellant on LWO P to eliminate his
improper dual compensation , see RID at 11 -14, did not constitute a “suspension”
because the agency did not place him in a “status without duties ” during the
period in question. Rather, the appellant cho se to be absent from his agency
workplace during his scheduled work hours. RID at 23. For a significant portion
of the 3 -year period, the appellant worked for the Department of the Army on
active duty on weekdays from 8:00 a.m. to 5:00 p.m. at Fort McPherson, and
therefore was absent from his agency workplace in Atlanta, when he was required
to be on duty from 8:00 a.m. to 4:30 p.m. RID at 5, 9, 23. He was required to be
8
on LWOP for long -term absences for militar y duties, but instead of requesting
LWOP , he continued adjudicating agency cases on weeknights, weekends, and
from his home , even though he did not have approval to work from an alternative
duty station . RI D at 7, 9, 23.
¶11 The administrative law judge found that Martin , Abbott , and McHenry were
distinguishable from this case because the agency never prevented the appellant
from reporting to work or performing his duties, nor did the agency ever provide
the appellant with any erroneous or misleading informati on that he would be paid
even if he was absent from work during his scheduled hours without having taken
leave . RID at 23-24. The appellant does not explain why he believes the
administrative law judge’s analysis regarding these cases is incorrect. Instead, he
merely asserts that the cases are “st rikingly similar” and “on point ” with his
appeal . PFR File, Tab 1 at 10-11. Therefore, he has shown no error in th e
administrative law judge ’s analysis . See 5 C.F.R. § 1201.114 (b) (requiring a
petition for review to state a party’s objections to the initial decision, including
all of the party’s legal and factual arguments with supporting references to
applicable laws or regulations and the record) .
¶12 In any event, the administrative law judge correctly found that Martin is
distinguishable from this appeal. In Martin , 123 M.S.P.R. 189 , ¶¶ 2, 4, the
appellant had been placed by the agency in a retirement status, i.e., a status
without duties, effecti ve July 31, 2011, pursuant to the terms of a settlement
agreement . After the Office of Personnel Management (OPM) did not approve
certain enhanced retirement contributions, the Board found that the appellant had
suffered an appealable nonconstructive susp ension when the agency retroactively
placed h er in an LWOP status despite having told he r that she would be restored
as if she had never left the agency if OPM did not approve the retirement. Id.,
¶¶ 3-4, 9. Thus, the appellant in Martin had been placed by the agency in a status
without duties during the period in question, between July 31, 2011, and
October 3, 2012, Id., ¶ 4, before the retroactive placement on LWOP ; by contrast,
9
the appellant in this case had not been placed in such a status . In fact, he was
generally in a duty status for the 3 years in question, w ith the exception of those
dates on which he had requested and received approved leave. RID at 9-10, 23.
¶13 Similarly, Abbott is distinguishable from this appeal because it involved an
agency’s prospective placement of an employee on enforced leave, i.e., a status
without duties, because there was no work available within her medical
restrictions. Abbott , 121 M.S.P.R. 294 , ¶¶ 3, 6, 9. The appellant in this case was
not prospectively placed in a status without duties during the period in question
due to an unavailability of work. In McHenry , the Board found that t he agency
suspended the appellant when it “retroactively rescinded his sick leave, directed
him not to return to work , and placed him in an LWOP status for more than
14 days.” McHenry , 121 M.S.P.R. 80 , ¶¶ 3, 8. Thus, the appellant in McHenry ,
like the appellant in Martin , was already in a status without duties, i.e., sick
leave, when the agency retroactively placed him in a different status without
duties, i.e., LWOP , which did not include pay . See Slocum v. U.S. Postal Service ,
107 M.S.P.R. 129 , ¶¶ 3, 12 (2007) (describ ing sick leave as a type of non -duty
status) . Thus, in all three of the cases cited by the appellant , the employees were
either prospectively placed in a status without duties and pay , unlike the
appellant, or retroactively placed in a status without pay after having already been
placed by the agency in a status without duties. The appellant has identified no
authorit y supporting his assertion that the agency effected an appealable
suspension w hen it retroactively placed him on LWOP for a period during which
he had not already been placed in a status without duties and, in fact, was absent
from the workplace when he wa s in a duty status .
The agency did not reduce the appellant in pay under 5 U.S.C. § 7521 (b)(4) .
¶14 The appellant further contends that his retroactive placement on LWOP
constituted a “reduction in pay” under 5 U.S.C. § 7521 (b)(4) because he
performed his duties as an administrative law judge when he was on leave from
active reserve duty, and thus fully ear ned his agency salary during tho se periods
10
of time . PFR File, Tab 1 at 13-14. He therefore asserts that “[a]ny attempt by the
Agency to effectuate a reduction in salary under the pretense of ‘debt’ or ‘salary
overpayment’ is clear ly an action that falls within the Board’s jurisdiction under
5 U.S.C. § 7521 (b)(4) as a salary reduction.” Id. at 14.
¶15 As set forth above, the administrative law judge found no reduction in pay
because the agency’s withholding of pay based on the appellant’s placement on
LWOP did not constitute an appealable reduction in h is rate of basic pay. RID
at 25-26. This determination was correct. A reduction in pay is defined for
purposes of 5 U.S.C. § 7521 as a reduction in the rate of basic pay fixed by law or
administrative action for the position held by an employee . 5 U.S.C.
§ 7511 (a)(4) ; see Lawson , 64 M.S.P.R. at 680 . Here, the appellant does not
allege, and there is no indication in the record demonstrating , that the agency
reduced h is rate of basic pay when it placed him on LWOP. Although the
appellant contends on review that he earned a salary from the agency during those
periods when he was on leave from active reserve duty , this assertion does not
demonstrate an appealable reduction in his rate of basic pay. Therefore, the
appellant has shown no error by the administrative law judge.
¶16 Accordingly, we agree with the administrative law judge tha t this case does
not involve a suspension or a reduction in pay under 5 U.S.C. § 7521 , and that
there is therefore no need to reach the question of whether there is good cause for
the agency’s action. RID at 33; see Jennings , 123 M.S.P.R. 577 , ¶ 28.3 The
Board ’s jurisdiction is not plenary; it is limited to those matters over which it has
been given jurisdiction by law, rule or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985 ). We acknowledge that the
agency in this case retroactively subjected the appellant to a major personnel
3 The appellant does not challenge on review the USERRA findings incorporated by t he
administrative law judge into her remand initial decision from her prior initial decision,
including her order requiring the agency to modify or replace certain personnel actions
during the period in question. PFR File, Tab 1 at 4 -5; RID at 34 -35. The refore, we
need not address those findings in connection with the appellant’s petition for review.
11
action with far -reaching financial consequences for him . However, except to the
limited extent discussed below, the Board lacks jurisdiction to rule on the
propriety of that action. The appellant ’s chief remedy lies elsewhere, in his
challenge to the DAB decision .
The appellant’s military service was not a substantial or motivating factor in the
agency’s action retroactively placing h im on LWOP during the periods for which
it had previously approved annual and sick leave .
¶17 The agency asserts in its cross petition for review that the administrative
law judge did not apply th e factors set forth in Sheehan v. Department of the
Navy , 240 F.3d 1009 , 1014 (Fed. Cir. 2001 ), in de ciding whether the appellant
established th at his uniformed service was a substantial or motivating factor in
the agency’s action retroactively placing h im on LWOP during the periods for
which it had previously approved annual and sick leave .4 PFR File, Tab 2 at 24.
In this regard, the agency con tends that the following factors weigh against a
finding that the appellant met his burden by preponderant evidence:
(1) proximity in time between the employee’s military activity and the agency’s
action (taken 18 months after the appellant’s active milit ary duty ended) ;
(2) evidence of disparate treatment of certain employees compared to other
employees with similar work records or offenses (no such evidence );
(3) inconsis tencies between the proffered reason and other actions of the agency
(no such incons istencies) ; and (4) evidence of the agency expressing hostility
4 The agency also asserts on review that the Board lacks the authority to recalculate or
otherwise determine the amount of the appellant’s debt to the agency , and that collateral
estoppel precludes the relitigation of the amount of that debt. PFR File, Tab 2 at 11 -22.
Given our determination that the appellant has not proven that his military service was a
substantial or motivating factor in the agency’s act ions relating to his annual and sick
leave, we need not address these arguments in connection with those types of leave.
The agency does not challenge the administrative law judge’s finding that the
appellant’s military service was a motivating factor in the substitution of LWOP for
approved military leave, but instead contends that the administrative law judge lacked
jurisdiction to find that the agency violated USERRA in denying military leave and was
precluded under collateral estoppel from making that determination. Id. at 23 n.5. We
address these arguments in separate sections of this Final Order.
12
toward s members protected by the statute together with knowledge of the
appellant’s military activity (no such evidence) . Id. at 25 -27. The agency also
asserts that the mere awareness of an employee’s military service does not mean
that the employer relied on, took into account, considered, or conditioned its
action on such service . Id. at 27-29. Thus, the agency asserts that the mere fact
that the appellant’s misconduc t, which prompted the agency to retroactively place
him on LWOP, occurred while he was on active duty does not mean that it was
motivated to discriminate against him based on his military service. Id. at 29-30.5
¶18 The administrative law judge found that mil itary leave, annual leave, and
sick leave are benefits of employment under USERRA and that the agency denied
the appellant such benefits when it retroactively placed him on LWOP . Jennings
v. Social Security Administration , MSPB Docket No. AT -4324 -11-0442 -I-1,
Initial Appeal File (IAF), Tab 115, Initial Decision (ID) at 36 , 39-44. She further
found that the appellant met his burden of proving that his uniformed service was
a substantial or motivating factor in th at decision because the denial of military
leave is a benefit provided to military members exclusively and was an express
basis for the action , and the acting official testified that, although he did not
consider the appellant’s military status in deciding to seek recovery of the funds
paid to him, he did consider that the appellant engaged in improper dual
employment, which included the fact that he was on active military service while
working as an administrative law judge . ID at 29 -31, 40, 44. The administrative
law judge then found that the ag ency did not prov e by preponderant evidence that
5 The appellant has filed a motion to dismiss the agency’s cross petition for review as
untimely, and the agency has filed a motion for leave to file a res ponse. PFR File,
Tabs 5-6. We find that the agency timely filed its cross petition on the first workday
following the filing deadline, which fell on a holiday weekend. PFR File, Tabs 1 -2; see
5 C.F.R. §§ 1201.23 (explaining that if the date that ordinarily would be the last day for
filing falls on a weekend or a Federal holiday, the filing period includes the first
workday after that date), 1201.114(e) (providing that a party must file cross petition
within 25 days of the date of service of the petition for review). Accordingly, we deny
the appellant’s motion and need not consider the agency’s motion.
13
it would have denied the appellant military, annual, and sick leave , on the dates
he requested such leave , for legitimate reasons . ID at 31 -34, 36-44.
¶19 Under 38 U.S.C. § 4311 (a), and for purposes of this appeal, a person who is
a member of, performs, or has performed service in a uniformed service shall not
be denied any benefit of employment by an employer on the basis of such
membership or service . An employer shall be considered to have engaged in
prohibited actions if the person’s membership or service in the uniformed
services is a motivating factor in the employer’s action, unless the employer can
prove that the action would have been taken in the absence of such membership
or service . 38 U.S.C. § 4311 (c)(1). A “‘benefit of employment ’ . . . means the
terms, conditions, or privileges of employment, including any advantage, profit,
privilege, gain, status, account, or interest (including wages or salary for work
performed) that accrues by reason of an employment contract or agreement or an
employer p olicy, plan, or practice.” 38 U.S.C. § 4303 (2). Leave to which an
employee is entitled is a benefit of employment. Machulas v. Department of the
Air Force , 109 M.S.P.R. 165 , ¶ 6 (2008); Johnson v. U.S. Postal Service ,
85 M.S.P.R. 1 , ¶ 8 (1999).
¶20 In US ERRA actions, there must be an initial showing by the employee, by
preponderant evidence, that the employee’s military status or performance of
service was at least a motivating or substantial factor in the agency’s action, upon
which the agency must prove, also by preponderant evidence , that the action
would have been taken for a valid reason despite the protected status or service .
Strausbaugh v. Government Printing Office , 117 M.S.P.R. 566 , ¶ 11, aff’d , 493 F.
App’x 61 (Fed. Cir. 2012) ; see McMillan v. Department of Justice , 120 M.S.P.R.
1, ¶ 13 (2013) . Military service is a motivating factor for an adverse employment
action if the employer relied on, took into account, consid ered, or conditioned its
decision on the employee’s military -related absence or obligation. Strausbaugh ,
117 M.S.P.R. 566, ¶ 11. The factual question of discriminatory motivation or
intent may be proven by direct or circumstantial evidence. Sheehan , 240 F.3d
14
at 1014. Direct evidence of discrimination may be any statement made by an
employer that reflects directly the alleged d iscriminatory attitude and bears
directly on the contested employment decision . Jordan v. U.S. Postal Service ,
90 M.S.P.R. 525 , ¶ 9 (2002). By contrast, circumstantial evidence of
discrimi natory motivation under USERRA:
[M]ay be reasonably inferred from a variety of factors, including
proximi ty in time between the employee’ s military activity and the
adverse employment action, inc onsistencies between the proffered
reason and other actio ns of the employer, an employer’ s expressed
hostility towards members protected by the statute together with
knowledge of the employee’ s military activity, and disparate
treatment of certain employee s compared to other employees with
similar work records or offenses.
Sheehan , 240 F.3d at 1014. “In determining whether the employee has proven
that his protected status or activity was part o f the motivation for the agency’ s
conduct, all record evidenc e may be considered, in cluding the agency’ s
explanation for the actions taken.” Id.
¶21 When an appellant does not claim that performance in a uniformed service
or an obligation to perform such service accounted for the agency’s action, but
instead claims th at the action resulted from “something that happened during their
service, ” the appellant has not raised a claim under USERRA , and the appeal
must be dismissed for lack of jurisdiction . See Daniels v. U.S. Postal Service ,
88 M.S.P.R. 630, ¶¶ 8-9, aff’d , 25 F. App’x 970 (Fed. Cir. 2001) ; McBride v. U.S.
Postal Service , 78 M.S.P.R. 411, 414 -115 ( 1998 ). Th us, th e Board has applied
this reasoning to a claim that the agency terminated a probationer due to certain
abilities acquired as a result of military service , Daniels , 88 M.S.P.R. 630, ¶ 5,
and to a claim that the agency denied initial employment based on a disability
arising out of performance of military service , McBride , 78 M.S.P.R. at 415.
¶22 Similarly, an administrative judge properly denied corrective action under
USERRA when the evidence showed that the agency’s decision to terminate the
appel lant was based not on his military service, but rather on conduct that
15
occurred while he was on a pass during his active military duty status.
Strausbaugh , 117 M.S.P.R. 566, ¶ 12. The Board noted that USERRA “only
prevents discrimination on account of service in the military; it does not prohibit
an agency from considering events which occur during an employee’s service. ”
Id. Nothing in USERRA requires an agency to disregard misconduct, however
egregious, if it occurred during an employee’s military service. Id. Thus, the
Board concluded that , “although there is no dispute that the conduct at issue
occurred while the appellan t was on active military duty status, it does not follow
that the agency decision to terminate him for that conduct establishes that its
decision was motivated by his military status.” Id.
¶23 The Board has similarly held that USERRA does not prohibit an employer
from taking action against an employee for gratuitous misconduct in the course of
performing military duties, such as terminating an employee for doing Naval
Reserve business at work in violation of company policy. McMillan ,
120 M.S.P.R. 1, ¶ 17. Thus, the employment protection under 38 U.S.C. § 4311
is based upon the employee’s compliance with the reasonable and ordinarily
accepted standards of person al conduct and performance of all employees. Id.
To the extent an appellant may violate those standards, and is not required to do
so by his mili tary orders, his ac tivity is not protected under section 4311(a). Id.
¶24 In a November 2, 2006 memorandum from the Special Agent in Charge
(SAIC) of the Atlanta Field Division, Office of the Inspector General (OIG) ,
Office of Investigations, to the Chief Administrative Law J udge of the Atlanta
Region’s Office of Disability Adjudication Review , the SAIC noted the origins
and history of its investigation o f the appellant, as well as the fact that
information provided by the Atlanta Region’s Center for Human Resources
(CHR) indicated that, “[p]er the Office of Personnel Management Employment
Rights and Benefits of Federal Civilian Employees, an SSA employee cannot
receive compensation from the SSA while serving as a reservist on extended
active military duty.” IAF, Tab 114 a t 1, 6. The SAIC explained that the CHR
16
had advised that employees cannot receive dual compensation while on extended
active military duty and that “dual compensation was identified” in connection
with the investigation into the appellant. Id. at 6, 10.
¶25 The agency then took a series of actions in June -July 2007 , and in
October 2007, to recover the salary overpayment . IAF, Tab 60 at 8-18. In so
doing, the agency noted that , during the applicable time period , the appellant
“was receiving dual compensation in violation of OPM regulations which in turn
constitutes an overpayment ” and that the OIG had recommended that he be
directed to repay overpaid amounts. Id. at 9. The agency noted that it s Office of
Genera l Counsel “reported that it found OPM guidance and at least two
Comptroller General cases which essentially state/hold that a federal employee
called to regular active duty may not be paid his civilian salary at the same time
he is on regular active duty.” Id. at 12. The agency discussed the legal
authorities supporting recovery of the overpayment, including the agency’s
internal policies, OPM published guidance, and Comptroller General decisions .
Id. at 17 -18.
¶26 The agency’s Inspector General (IG) issued a September 2007 Management
Advisory Report to the Commissioner addressing the adequacy of administrative
practices in the Atlanta North Office of Disability Adjudication and Review
relating to the accuracy of employees’ time and attendance records and
compliance with established agreements and procedures when employees worked
at alternate duty stations . IAF, Tab 110 at 67 -70. The report requested a
corrective action plan, to be provided within 60 days, that addressed each
recommendation in the report . Id. at 67. The IG determined that, between
January 2003 and December 2005, an administrative law judge (the app ellant)
purportedly worked full time with the agency while simultaneously serving full
time on active military duty, thereby improperly receiving $359,769 in salary and
accruing $26,492 in annual leave. Id. at 73, 77. The IG noted that, according to a
U.S. Comptroller General decision, Federal employees are prohibited from
17
working for, and receiving compensation from, their employing Federal agency
while on active military duty. Id. at 77. Moreover, according to the agency’s
policies and procedures, an employee on extended active military duty must be
placed in a “Military Leave Without P ay” status. Id. The IG recommended that
the agency, among other things, “[s]eek repayment from the ALJ [Administrative
Law Judge] for the $359 ,769 in salary and $26,492 in accrued annual leave that
was improperly received from SSA while he was on full -time active military
duty” and “[t]ake any administrative actions deemed appropriate to address the
ALJ’s actions, which led to the receipt of salary and benefits to which the ALJ
was not entitled.” Id. at 79 -80. The report noted that the agency had agreed with
the recommendations. Id. at 80. In November -December 2007, the agency
retroactively placed the appellant on LWOP effective January 2, 2003, and
notified him of the resulting overpayment. IAF, Tab 1 at 9 -10, Tab 51 at 149 -60.
¶27 At the hearing in this case, the Chief Administrative Law Judge, who was
the deciding authority as to administrative law judge personnel actions, testified
that, after the OIG conducted an investigation of the appellant based on an
anonymous tip, they “concluded that he was, in fact, engaging in improper dual
employment and, thus, receiving improper dual compensation and recommended
to me that we take the necessary action to recoup the salary overpayment.” IAF,
Tab 100, Hearing Transcript (HT), Volume III at 100-03 (testimony o f the Chief
Administrative Law Judge) . He testified that his office then conducted its own
investigation and reached the same conclusion, i.e., that the appellant engaged in
improper dual employment. Id. at 104. He testified that he made the decision to
seek recou pment of the salary overpayment and reached that decision based upon
the following:
We had the recommendation from the Office of the Inspector
General that because of the improper dual employment and improper
dual compensation that we seek overp ayment – seek recoupment of
that salary overpayment. We consulted with the Office of the
General Counsel to see if that action of recoupment would be legal
18
and the Office of General Counsel said, yes, it was legal and also
consistent with Agency policy. We also consulted with the Office of
Labor Management and Employee Relations and they agreed that the
action was the appropriate action, and my staff also recommended
we take that action. And I considered myself that I thought it was an
appropriate action to take. ALJs, administrative law judges, are –
they hold a high and prominent federal office and they are expected
to act in a fitting manner. I believe that taking public money to
which a person is not entitled to did not fit that standard .
Id. at 104-05. The C hief Administrative Law Judge also testified that he did not
personally research the applicable law because “[w]e have the lawyers ” and he
relied “on the lawyers to do the research for us” to obtain consistent advice. Id.
at 106. He further indicated that the appellant was retroactively placed on LWOP
to recoup the salary overpayment and that , although he was aware that the reason
for the improper dual employment was because the appellant “was in active duty
for the military in addition to having the position as an administrative law judge ,”
he did not consider the appellant’s military status in seek ing the recovery because
it was not relevant . Id. at 106-07. The C hief Administrative Law Judge testified
that it was not relevant because “[w]e had the recommendation that he had
engage d in improper dual employment,” and his office reached the same
conclusion, which was to take the action recommended by the IG “based on the
facts that were presented” in the recommendation . Id. at 107.
¶28 Given the above record evidence, we find that the agency based its
determination to retroactiv ely place the appella nt on LWOP , instead of on his
previously approved annual and sick leave, not on his military service, but rather
on conduct that occurred during his active -duty military service . See
Strausbaugh , 117 M.S.P.R. 566 , ¶ 12. As set forth above, USERRA prevents
discrimination on account of service in the military; it does not pr ohibit an
agen cy from considering events that occur during an employee’s military service ,
such as the appellant’s decision in this case to continue to work for the agency
and receive pay from the agency while on active military duty . Id. Although
19
there is no dispute that the appellant continued to work for the agency and receive
pay from the agency while he was on active military duty status, it does not
follow that the decision to retroactively place him on LWOP instead of annual
and sick leave establis hes that its decision was motivated by his military status or
service . See i d.; see also Coffman v. Chugach Support Services, Inc. , 411 F.3d
1231, 1233, 1239 ( 11th Cir. 2005 ) (recognizing that an employer c an be aware of
an appellant’s military status yet still not consider, rely on, or take into account
such status in a discriminatory context when taking an action ).
¶29 Moreover, a review of the factors set forth in Sheehan demonstrate s that the
appellant did not meet his burden in this regard . The appellant did not identify
direct evidence that his military service was a motivating factor in the agency’s
decision , nor did the administrative law judge rely on such direct evidence .
Regarding proximity in time between the appellant’s military activity and the
agency’s action, t he appellant’s active duty service ended on January 17, 2006.
IAF, Tab 98, HT, Volume I at 52 (stipulation of the part ies). The agency made a
formal request on July 16, 2007, nearly 18 months later, to amend the appellant’s
time and attendance records to generate the salary overpayment. IAF, Tab 60
at 16. On December 7, 2007, almost 2 years after the end of his active duty
service, the agency approved , as set forth on the applicable Standard Form 50 , his
retroactive plac ement on LWOP. IAF, Tab 1 at 9 . Under these circumstances,
the timing of the agency’s action does not favor discriminatory motivation . Cf.
McMillan v . Department of Justice , 812 F.3d 1364 , 1373 (Fed. Cir. 2016) (finding
that the timing of a denial of a tour extension, less than 2 months after the taking
of military leave, favored a claim of discriminatory motivation under USERRA).
In addition, the appellant did not show any inconsistencies between the agency’s
proffered reason for the action and its other actions , nor did he show any
expressed hostility by the agency towards members protected by the statute
together with knowledge of h is military activity . In fact, the reasons proffered by
the agency for the ac tion were consistent with its other actions , as well as with
20
the recommendations it received from other agency components , and it
consistently accommodated the appellant’s military obligations. See IAF, Tab 98,
HT, Volume I at 73-74 (testimony of the appe llant that the agency “was always
accommodating to me in terms of approving annual leave, sick leave, or military
leave whenever I requested that type of leave in order to perform annual training
or add itional training or active duty ”). Finally, the appel lant did not show
disparate treatment. See ID at 31 n.10. Thus, he has not prov en by preponderant
evidence that his military status or performance of uniformed service was a
motivating o r substantial factor in the agency’s action as it related to his annual
and sick leave .6
The agency has not shown that the Board lacks the authority to order the agency
to recalculate the appellant’s debt to the agency .
¶30 The agency asserts that the administrative law judge improperly ordered it
to recalculate the appellant’s debt based on a salary overpayment because a n
administrative law judge with the DAB previously found that the appellant was
indebted to the agency for $427,784 .00, and the Board lacks the authority to
review the merits of a debt collection action. PFR File, Tab 2 at 2, 11-13. In this
regard, the agency contends that the DAB administrative law judge issued his
decision pursuant to 5 U.S.C. § 5514 , which provides for the c ollection of debts
owed to the United States by Federal employees . Id. at 5.
¶31 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox , 759 F.2d at 10. We are
aware of no law, rule, or regulation that grants the Board jurisdiction over a debt
collection action except in the context of the recovery of an overpayment in
retirement benefits by OPM. Secrist v. U.S. Postal Service , 115 M.S.P.R. 199 ,
6 As previously noted, the agency does not assert on review that the administrative law
judge erred when she found that the appellant’s military service was a motivating factor
in the denial of military leave, nor does it allege that it had legitimate reasons, standing
alone, for th at action. PFR File, Tab 2 at 23 n.5. Therefore, we need not address such
issues on review. See 5 C.F.R. § 1201.115 .
21
¶ 5 (2010). Nevertheless, the Board may address a debt collection issue “when it
is integral to the disposition of an underlying appealable action.” Id.
¶32 There i s no dispute that the Board has jurisdiction over th is USERRA
appeal. Moreover, if the Board determines that a Federal executive agency has
not complied with the provisions of 38 U.S.C. ch apter 43 relating to the
employment of a person by the agency, the Board “shall enter an order requiring
the agency . . . to comply with such provisions and to compensate such person for
any loss of wages or benefits suffered by such person by reason of such lack of
compliance.” 38 U.S.C. § 4324 (c)(2) . The amount of military leave to which the
appellant was entitled during the period in question , which may affect the amount
of the appellant’s debt to the agency, is integral to the merits of the underlying
USERRA appeal as well as the compensation the Board may order in this case .
The agency has not identified any authority , including 5 U.S.C. § 5514 , which
prevents the Board from order ing corrective action in a USERRA appeal in the
form of compensation for losses of benefits that may ultimately affect the amount
of a debt an appellant owes to an agency. See Haskins v. Department of the Navy ,
106 M.S.P.R. 616 , ¶ 11 (2007) (holding that the Board has the authority under
USERRA to order a remedy for an agency’s improper denial of military leave
benefits by requiring age ncies to correct the employee’s leave record to reflect a
proper accounting of military leave); Morgan v. U.S. Postal Service , 82 M .S.P.R.
1, ¶ 7 (1999) (holding that Congress enacted USERRA as remedial legislation ,
which was to be interpreted liberally to protect those persons who have served in
our armed forces ), aff’d , 250 F.3d 754 (Fed. Cir. 2000) (Table), and overruled on
other grounds by Fox v. U.S. Postal Service , 88 M.S.P.R. 381, ¶ 9 n. (2001) ; cf.
Minor v. Merit Systems Protection Board , 819 F.2d 280 , 283 (Fed. Cir. 1987)
(holding that a decision of the Office of Workers Compensation Programs or the
Employees’ Compensation Appea ls Board regarding a compensation award does
not bind the Board when it is acting within its own separate statutory sphere) .
Accordingly, the agency has not shown that the Board lacks the authority to order
22
the agency to recalculate the appellant’s debt in this case , and we agree with the
administrative law judge ’s analysis on this issue. See RID at 26 -29.
The agency has not shown that collateral estoppel applies in this case .
¶33 The agency also contends on review that collateral estoppel precludes
relitiga ting the issue of the amount of the appellant’s debt and the issue of
whether he elected to use military leave under 5 C.F.R. § 353.106 (a).7 PFR File,
Tab 2 at 15 -22. The administrative law judge found that the requirements for
applying that doctrine were not met in this case. RID at 30-33. We agree.
¶34 Collateral estoppel, or issue preclusion, is appropriate when the following
conditions are met: (1) the issue is identical to that invol ved in the prior action;
(2) the issue was actually litigated in the prior action; (3) the determination on the
issue in the prior action was necessary to the resulting judgment; and (4) the party
against whom issue preclusion is sought had a full and fair opportunity to litigate
the issue in the prior action, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that action. Hau v. Department of
Homeland Security , 123 M.S.P.R. 620 , ¶ 13 (2016) , aff’d sub nom. Bryant v.
Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017) . In determining
whether an issue is identical for collateral estoppel purposes, differences
precluding the application of collateral estoppel may be in facts, s ubject matter,
periods of time, case law, statutes, procedural protections, notions of public
7 The agency suggests that, because the DAB administrative law ju dge found that the
appellant did not comply with the notice requirement set forth at 38 U.S.C. § 4312 , and
therefore was not entitled to reemployment under that provision, the Board should not
find in the appellant’s favor under 38 U.S.C. § 4311 . PFR File, Tab 2 at 20 -21. The
applicable statutes do not suggest such an approach, and the agency has identified no
authority supporting such a finding. See, e.g. , Bostwick v. Department of Agriculture ,
122 M.S.P.R. 269 , ¶ 5 (2015) (noting that there are “two types of cases that arise under
USERRA,” reemployment cases and discrimination cases); Erickson v. U.S. Postal
Service , 120 M.S.P.R. 468 , ¶ 15 (2013) (finding that an appellant’s rights under
38 U.S.C. § 4311 are separate from his reemployment rights under 38 U.S.C. § 4312 );
Clavin v. U.S. Postal Service , 99 M.S.P.R. 619 , ¶ 6 (2005) (explaining the ways in
which discrimination and reemployment cases differ under USERRA).
23
interest, or qualifications of tribunals. Harris v. U.S. Postal Service ,
119 M.S.P.R. 583 , ¶ 6 (2013). Before a party can invoke collateral estoppel, the
legal matter raised in the subsequent proceeding must involve the same set of
events or documents and the same “bundle of legal principle s” that contributed to
the rendering of the first judgment. Tanner v. U.S. Postal Service , 94 M.S.P.R.
417, ¶ 11 (2003).
¶35 Here, th e issue s before the Board are whether the agency violated USERRA,
38 U.S.C. § 4311 (a), by denying the appellant a benefit of employment on the
basis of his performance of service in the uniformed service or his obligation to
perform such service , and the nature of the corrective action to be ordered upon
finding such a violation . IAF, Tab 41; ID at 18 -19. By contrast, the issue s before
the DAB administrative law judge w ere whether the appellant w as indebted to the
Government and the amount of that indebtedness . IAF, Tab 51 at 12, 16; see
5 U.S.C. § 5514 (a)(2)(D) (providing individuals with an opportunity for a hearing
“on the determinatio n of the agency concerning the existence or the amount of the
debt”) . There is no indication in the DAB decision that the administrative law
judge addressed the issue of whether the agency denied the appellant benefits of
employment under 38 U.S.C. § 4311 (a), or whether any such denial entitled him
to compensation . Thus, there was a difference in the subject matter, statutes , and
case law involved in the two proceedings , as well as a differen ce in the “bundle
of legal principles” to be applied in each case . Such differences preclude the
application of collateral estoppel in this case. Cf. Harris , 119 M.S.P.R. 583, ¶ 7
(finding that, although closely related, the issue in an arbitration proceeding of
whether the agency violated a collective bargaining agreement was not identical
to the issue before the Board of whether the appellant was furloughed) .
¶36 Under 5 C.F.R. § 353.106 (a), “[a]n employee absent because of s ervice in
the uniformed services is to be carried on leave without pay unless the employee
elects to use other leave .” The DAB administrative law judge, based on the
written record before him after he det ermin ed that there were no credibility issues
24
warra nting an oral hearing , held that because the appellant did not notify the
agency about his active duty, he “also made no election to use other leave.” IAF,
Tab 51 at 32 -33. The DAB administrative law judge held that the agency’s
assertion that it had pro perly placed the appellant on military leave in response to
his request s between January 2, 2003, and January 17, 2006, was “in error for, as
discussed Petitioner had to be placed in a LWOP status for the entire period.” Id.
at 33 n.23. By contrast, the administrative law judge in this appeal, based on the
extensive written record and hea ring testimony, held that the agency did not
account for all of the military leave to which the appellant was entitled, it was
self-evident that the deni al of military leave was a substantial or motivating factor
in the action because such denial involved a benefit exclusively provided to
military members, and the agency did not show that legitimate reasons, standing
alone would have induced it to deny the leave . ID at 31 -32, 39 -40. In so finding,
the administrative law judge found that the agency’s reliance on the DAB
decision did not meet that burden because, among other things, the DAB
administrative law judge did not “have the testimony and evidence b efore him
that were produced in the present proceeding ,” including evidence that the
appellant notif ied his supervisor that he had been ordered to active -duty military
service. Id. at 40 -44. She further found that the appellant had elected to use
militar y leave. Id. at 45.
¶37 In determining whether the collateral estoppel prerequisites have been met,
the Board and the courts have examined the forum in which the prior action took
place to assure that the quality, extensiveness, and procedural and substantive
fairness of the adjudication warrant application of the doctrine . Wildberger v.
Small Business Administration , 69 M.S.P.R. 667, 670 ( 1996 ), aff’d in part and
vacated in part on other grounds , 215 F.3d 1346 (Fed. Cir. 1999) (Table) . Here,
we agree with the administrative law judge that the DAB administrative law judge
“made his decision on the written record, that is, without pro viding an oral
evidentiary hearing, and therefore he did not have the testimony and evidence
25
before him that were pro duced in the present proceeding, ” and that the agency’s
evidence and the DAB decision “do not establish that the Agency had valid or
legiti mate reasons to calculate the debt without accounting for all of the military
leave to which [the appellant ] was entitled. ” ID at 40 -41. Moreover, the
administrative law judge also correctly found that the procedures under 5 U.S.C.
§ 5514 “do not appear to contemplate complex factual and/or legal issues such as
those arising under USERRA, which sometimes involve substantive written
motions and often require significant amounts of discovery, oral t estimony,
exhibits, and more than one issue of credibility or veracity. ” RID at 32. Under
these circumstances, we question the extensiveness and the procedural and
substantive fairness of the DAB adjudication, and we agree with the
administrative law jud ge that the appellant did not have a full and fair opportunity
to litigate issues raised under USERRA that affect the amount of the salary
overpayment , as well as the issue of whether he elected to use other leave
pursuant to 5 C.F.R. § 353.106 (a). Id. We have found no indication , for
example, that the appellant was on notice in the DAB proceeding that the question
of whether he had elected or requested to use military leave would be at issue.
By contrast, the question of whether the agency had denied such leave after it had
been requested by the appellant , and the applicability of 5 C.F.R. § 353.106 (a),
were identified as issue s in this case. See, e.g. , IAF, Tab 41 at 5 , Tab 51 at 2,
Tab 54 at 6, Tab 70 at 5 . Therefore, the agency has shown no error in the
administrative law judge ’s decision not to a pply collateral estoppel to the above
issues . See RID at 29-33.
¶38 Accordingly, we affirm the remand initial decision except as modified to
find that the appellant did not prove his USERRA claim as it relates to the denial
of annual and sick leave.
26
ORDER
¶39 We ORDER the agency to comply with 38 U.S.C. § 4316 (d) and 5 C.F.R.
§ 353.106 (a) by cancel ling its retroactive placement of the appellant on LWOP
for the days and hours between January 2, 2003, and January 17, 2006, on which
it had previously granted him military leave , granting him such military leave,
and compensating him for such leave.8 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.
¶40 We also ORDER the agency to pay the appellant the correct amount of
wages and benefits lost as a result of the agency’s actions, as required under
38 U.S.C. § 4324 (c)(2).9 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.
¶41 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Or der and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
8 The agency must compensate the appellant for the USERRA violation consistent with
the Order language set forth in this decision. The manner in which such compensation
is structured, i.e., whether it may be treated as a separate payment t o the appellant or as
a reduction in his already -calculated debt, is left to the agency’s discretion provided its
determination is consistent with applicable laws and regulations. See RID at 35
(ordering the agency to “correct its accounting to show with particularity how it
accounted for the restored benefits . . . , whether that is through reducing the alleged
salary overpayment or providing Appellant with a lump sum payment”).
9 The Board has held that the general provisions of the Back Pay Act ordinarily do not
control the remedy that appellants may receive should they succeed on the merits of
their USERRA claims. Erickson , 120 M.S.P.R. 468 , ¶ 17; Lee v. Department of Justice ,
99 M.S. P.R. 256 , ¶¶ 25-26 (2005).
27
¶42 No later tha n 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 of the Clerk of the Board if the appellant believes that the agency
did not fully carry out the Board’s Order. The petition should contain specific
reasons why the appellant believes that the agency has not fully carried out the
Board ’s Order, and should include the dates and res ults of any communications
with the agency. 5 C.F.R. § 1201.182 (a).
¶43 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs W ITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the Clerk of the
Board .
28
NOTICE OF APPEAL RIG HTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decis ion 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, 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 forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriat e in any matter.
29
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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. ____ , 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
30
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal O perations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request 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
31
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 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 com petent jurisdiction.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Presid ent on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jur isdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
32
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
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 und ertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annu ity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If intere st is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provid e same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | JENNINGS_KELLY_STEPHEN_AT_4324_11_0442_B_1_FINAL_ORDER_2019827.pdf | 2023-04-10 | null | AT-4324 | NP |
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