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3,300 | https://www.mspb.gov/decisions/nonprecedential/LOTT_ALICIAN_SF_0752_16_0490_I_1_FINAL_ORDER_2019935.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALICIAN LOTT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -16-0490 -I-1
DATE: April 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christina Quashie , Esquire, Alan L. Lescht , Esquire, and Barrett Kelly ,
Esquire, Washington, D.C., for the appellant.
Dawn Dobbs and Captain James L. Paul , Schofield Barracks, Hawaii, 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
affirmed her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the 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 deciding official made several mistakes , including
that (1) she inappropriately held the appellant to a h igher standard of conduct,
(2) she wrongly concluded that the agency’s Criminal Investigation Command
determined that the appellant had committed an offense, (3) she erred to the
extent that she found that the appellant’s remorsefulness was not more mitigating
because the appellant also argued that similarly situated employees were not
similarly disciplined, and (4) she erred to the extent that she failed to give
considerable mitigating weight to the fact that the appellant’s mental impairment
played a part in her misconduct, we AFFIRM the initial d ecision.
BACKGROUND
¶2 The relevant background information is not in material dispute. As of
January 2014, the agency employed the appellant as a Workforce Management
Technician with its Tripler Army Medical Command in Hawaii. Initial Appeal
3
File (IAF), Ta b 5 at 75. In that role, the appellant was responsible for managing
the organization’s performance evaluation system , awards, leave transfers, and
mandatory drug testing for civilian employees. IAF, Tab 16 at 14.
¶3 In or about late 2013 to early 2014 , the appellant began to suspect that her
husband was having an affair with a soldier in his unit. IAF, Tab 5 at 20; Hearing
Transcript (HT) at 107 (testimony of the appellant) . One reason for her suspicion
was that someone made telephone calls to her home but would hang up whenever
the appellant answered. IAF, Tab 5 at 20; HT at 107 (testimony of the appellant) .
The appellant provided the caller’s telephone number to her friend, J.T.,3 so that
she could identify who the caller was. IAF, Tab 5 at 20; HT at 1 09 (testimony of
the appellant) . J.T. informed the appellant that the caller was a soldier in the
appellant’s husband’s unit. IAF, Tab 5 at 20; HT at 114 (testimony of the
appellant) .
¶4 On January 17, 2014, someone left a note for the appellant’s coworker to
print the caller’s Enlisted Record Brief (ERB),4 which contains such personally
identifiable information (PII) as the person’s social security number, date of
birth, marital status, religion, and home address.5 IAF, Tab 5 at 54 -55, 71. The
3 The agency asserted that J.T. worked for the agency as a Human Reso urces Specialist
at a different facility from the appellant. IAF, Tab 17 at 6.
4 The ERB is a document that human resources professionals use when determining a
soldier’s assignments, promotions, advancements, and military schools. The ERB
contains a sol dier’s personal data, provided on different sections of the form.
5 PII is defined as :
information which can be used to distinguish or trace an individual’s
identity, such as their name, social security number, biometric records,
etc. alone, or when comb ined with other personal or identifying
information which is linked or linkable to a specific individual, such as
date and place of birth, mother’s maiden name, etc.
Office of Management and Budget (OMB) Memorandum M -07-16, Safeguarding
Against and Respond ing to the Breach of Personally Identifiable Information, at 1 n.1
(May 22, 2007), available at https://www.whitehouse.gov/wp -
content/uploads/legacy_drupal_files/omb/memoranda/2007/m07 -16.pdf . “Safeguarding
[PII] in the possession of the government and preventing its breach are e ssential to
4
ERB printed out while the appellant was standing by the printer making copies of
her husband’s telephone calls to the soldier in question. Id. at 65 -68. The
appellant saw on the ERB information that she viewed as further evidence that
they were having an affair. H T at 115 (testimony of the appellant) . A copy of the
soldier’s Enlisted Distribution and Assignment System (EDAS) record6 also
printed at that time.7 IAF, Tab 5 at 65 -68. The appellant placed these records in
a manila envelope and gave the envelope to J.T. during her lunch break. HT
at 116-17 (testimony of the appellant) .
¶5 In or about September 2014, the appellant was selected for the position of
Human Resources (HR) Specialist with the Hawaii Civilian Personnel Advisory
Center. IAF, Tab 5 at 75. Arou nd that same time, after the appellant and J.T. had
a falling out, J.T. turned the envelope over to a “responsible” organization. Id.
at 21, 44 -45, 57.
¶6 The agency’s Criminal Investigation Command ( CID) conducted an
investigation into allegations that th e appellant and her coworker had exceeded
their authorized access and damaged the computer systems when obtaining the
soldier’s records. Id. at 48 -74. Although CID found that it had probable cause to
believe the appellant committed the acts as alleged, i t determined that the
offenses were below the threshold set for Federal prosecution in Hawaii. Id.
at 50.
ensure the g overnment retains the trust of the American pub lic” and is a function of
applicable laws, such as the Privacy Act, 5 U.S.C. § 552a . OMB Memorandum
M-07-16, at 1.
6 The EDAS is an interactive automated system that supports the management of the
enlisted by providing information or assistance regarding such matters as assignment
instructions, deferments, and personnel records.
7 The evidence reflects that the appellant did not have access to the soldier’s ERB or
EDAS. IAF, Tab 5 at 20 -21, 53 -54. In her December 2015 response to the proposed
removal, the appellant denied having asked anyone to print the soldier’s ERB or EDAS.
Id. at 20 -21. At hearing, she denied that she requested her coworker to print the ERB.
HT at 115 (testimony of the appe llant) .
5
¶7 In April 2016, the agency effected the appellant’s removal for unacceptable
and inappropriate conduct from an HR employee. Id. at 11 -16. The appell ant
filed a Board appeal, alleging, among other things, that the agency violated her
due process rights. IAF, Tab 1 at 7. After conducting a hearing, the
administrative judge found that the agency proved its charge, that the appellant
failed to prove her affirmative defense, and that the penalty of removal was
within the bounds of reasonableness. IAF, Tab 22, Initial Decision ( ID) at 6-19.
¶8 The appellant has filed a petition for review arguing that the administrative
judge erred in determining that she fa iled to prove that the agency violated her
due process rights and erred in determining that the penalty of removal was
within the bounds of reasonableness. Petition for Review (PFR) File, Tab 5
at 5-6. The agency has filed a response opposing the petitio n. PFR File, Tab 7.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s due process rights were not violated.
¶9 The appellant asserts that the deciding official held her, as an HR employee,
to a higher standard of conduct than other Federal employees, even though the
proposal notice made no reference to this higher standard of conduct. PFR File,
Tab 5 at 8 -9. The administrative judge found that the appellant was on notice that
she was being held to the standard of conduct applicable to an HR employee, and
that the deciding official therefore did not consider an aggravating factor about
which the appellant was not given notice. ID at 11. The appellant argues that for
the Board to accept the administrative judge’s finding would be to allow any
agency to fra me a charge against an employee to include the employee’s position,
and then claim that the employee was on notice that they were being held to a
higher standard of conduct associated with their position. PFR File, Tab 5 at 9.
¶10 Pursuant to Ward v. U.S. Pos tal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 ,
1376 -77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
6
rights when she relies upon new and material ex parte information as a basis for
her d ecision on the merits of a proposed charge or the penalty to be imposed.
Lange v. Department of Justice , 119 M.S.P.R. 625 , ¶ 8 (2013 ). Our reviewing
court has found that, ultimately, an ex parte communication only requires a
reversal of an agency action when it “is so substantial and so likely to cause
prejudice that no employee can fairly be required to be subjected to a deprivation
of property under such circumstances.” Stone , 179 F.3d at 1377. The Board has
held that this analysis applies not only to ex parte communications introducing
information that previously was unknown to the deciding official but also to
information persona lly known and considered by the deciding official, if that
information was not included in the notice of proposed removal to the appellant.
Lopes v. Department of the Navy , 116 M.S.P.R. 470 , ¶ 10 (2011).
¶11 Information that merely confirms or clarifies information already contained
in the record does not con stitute new and material information. Blank v.
Department of the Army , 247 F.3d 1225 , 1229 (Fed. Cir. 2001); Grimes v.
Department of Justice , 122 M.S.P.R. 36 , ¶ 11 (2014). The appellant has the
burden of proving her affirmative defense by preponderant evidence.8 5 C.F.R.
§ 1201.56 (b)(2)(i)(C).
¶12 At the hearing, t he deciding official answered affirmatively both when
asked if she believed that HR employees are held to a higher standard of conduct
than other Federal employees and when asked if she considered this an
aggravating factor in her decision to remove the appellant. HT at 41, 45
(testimony of the deciding official) . But we find that the deciding official’s
determinations on these issues di d not constitute new and material information
that was she was required to share with the appellant prior to issuing her decision.
See Blank , 247 F.3d at 1229. The proposal notice clearly informed the appellant
8 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
7
that the agency was proposing her removal f or “unacceptable and inappropriate
conduct from a Human Resources (HR) employee.” IAF, Tab 5 at 44. We find
that the deciding official’s decision to hold the appellant to a higher standard of
conduct was based on this information, rather than on some set of facts not shared
with her.
¶13 Moreover, in her response to the proposed removal, the appellant argued
that she should not be held to the higher standard of conduct applicable to
supervisors. Id. at 24. Possibly being held to a higher standard is, accord ingly,
an issue to which the appellant had an opportunity, and in fact did, respond. See
Wilson v. Department of Homeland Security , 120 M.S.P.R. 686 , ¶¶ 10 -11 (2014),
aff’d , 595 F. App’x 995 (Fed. Cir . 2015). The deciding official’s rejection of the
appellant’s argument did not violate her due process rights. See Grimes ,
122 M.S.P.R. 36 , ¶ 13. Accordingly, we find that no due process violation
occurred.
The penalty of removal is within the bounds of reasonableness.
¶14 The appellant argues that a number of factors weigh in favor of mitigating
the agency -imposed penalty of removal. PFR File, Tab 5 at 10 -24. In Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 305 (1981), the Board identified
12 factors that are generally relevant when determining the appropriateness of a
penalty. It is not the Board’s role to decide what penalty it would impose, bu t,
rather, whether the penalty selected by the agency exceeded the maximum
reasonable penalty. Arena v. U.S. Postal Service , 121 M.S.P.R. 125 , ¶ 6 (2014) ,
aff’d per curiam , 617 F. App’x 996 (Fed. Cir. 2015) .
¶15 The appellant argues that the deciding official i nappropriately subjected her
to a higher standard of conduct. PFR File, Tab 5 at 10 -11. The agency argues
that it was ap propriate to subject the appellant to a higher standard of conduct
because she had a responsibility not to use PII for her own personal reasons. PFR
File, Tab 7 at 6. Pursuant to the second Douglas factor, the Board has held that
law enforcement officers , supervisors, and employees who owe a fid uciary duty
8
toward their agency may be held to a higher standard of conduct than are other
employees. Reid v. Department of the Navy , 118 M.S.P.R. 396 , ¶ 26 (2012);
Singletary v. Department of the Air Force , 94 M.S.P. R. 553 , ¶ 12 (2003), aff’d ,
104 F. App’x 155 (Fed. Cir. 2004); see Douglas , 5 M.S.P.R. at 305. The Board
occasionally has declined to hold other types of employees to this higher standard
of conduct. See, e.g. , Boo v. Department of Homeland Security , 122 M.S.P.R.
100, ¶ 21 (2014); Fernandez v. Department of Agriculture , 95 M.S.P.R. 63 , ¶ 15
(2003); Jackson v. Department of the Navy , 52 M.S.P.R. 1 , 3-4 (1991).
¶16 The deciding official testified that she believed the appellant held fiduciary
responsibilities, despite not being entrusted with anything related to the agency’s
finances, by virtue of her access to employees’ personal information. HT at 44,
63 (testimony of the deciding official). She also stated as much in a Douglas
factors worksheet. IAF, Tab 16 at 172. However, an employee with fiduciary
responsibilities, for purposes of the second Douglas factor, refers to an employee
who i s responsible for an agency’s finances in some capacity. See, e.g. , Special
Counsel v. Lee , 114 M.S.P.R. 57 , ¶ 39 (201 0) (noting that a nonsupervisory HR
specialist had no fiduciary duties for purposes of a Douglas factors analysis),
rev’d in part on other grounds by Beatrez v. Merit Systems Protection Board ,
413 F. App’x 298 (Fed. Cir. 2011); Myers v. Department of Agriculture ,
88 M.S.P.R. 565 , ¶¶ 34 -35 (2001), aff’d , 50 F. App’x 443 (Fed. Cir. 2002);
Campbell v. Defense Logistics Agency , 37 M.S.P.R. 691 , 696 (1988); but see
Holcombe v. Veterans Administration , 12 M.S.P.R. 68 , 72 (1982) (finding that a
supervisor of clinic clerks had a fiduciary responsibility to make certain that his
subordinates did not improperly obtain medications or engage in forging
prescription forms ), aff’d , 713 F.2d 865 (D.C. Cir. 1983). Accordingly, we find
that the deciding official erred in holding the appellant to a higher standard of
conduct by virtue of her position.
¶17 The appellant further argues that the deciding official wrongly concluded
that CID determined that she had committed an offense. PFR File, Tab 5
9
at 20-21. Both t he proposing and deciding officials found that CID dete rmined
that the appellant committed the offense of “Conspiracy; Exceeding Authorized
Access, and Damage to a U.S. Government Computer.” IAF, Tab 5 at 13, 44 -45.
In fact, CID only found that it had probable cause to believe the appellant
committed the tit led offenses. Id. at 50, 61. Accordingly, we agree that the
deciding official also erred in assuming that CID determined that the appellant
actually committed the referenced offenses.
¶18 The appellant additionally asserts that the deciding official erred wh en she
concluded that the appellant’s remorsefulness was undercut by her attempt to,
among other things, place some blame for what happened onto J.T. and her
coworker who printed the PII at issue . PFR File, Tab 5 at 23-24. The deciding
official testified that she found the appellant to be remorseful and that she did not
find that the appellant’s representative’s arguments undermined the appellant’s
apology or potential for rehabilitation. HT at 36, 55 -56 (testimony of the
deciding official) . The administrative judge concluded, however, that the
deciding official apparently “found that the appellant’s apology was not more
mitigating because it was accompanied by finger pointing.” ID at 12 -13.
¶19 In her reply to the proposed removal, the appellant arg ued that J.T. and her
coworker had not been similarly disciplined. IAF, Tab 5 at 17, 22. As the
appellant states on review, it generally is inappropriate to use an employee’s
attempts to defend herself in disciplinary proceedings as an aggravating factor or
an indication that she lacked remorse. PFR File, Tab 5 at 23 ; Raco v. Social
Security Administration , 117 M.S.P.R. 1 , ¶ 16 (2011).
¶20 The administrative judge essentially found that the deciding official did not
view the appellant’s “finger pointing” as an aggravating factor but instead merely
viewed it as a factor relevant to determining the degree of mitigation to warrant
her remors efulness. ID at 13. However, to the extent that the deciding official
found that the appellant’s remorsefulness was not more mitigating because the
appellant also argued that similarly situated employees were not similarly
10
disciplined, we find that the d eciding official inappropriately viewed the
appellant’s attempt to defend herself as an aggravating factor. See Raco ,
117 M.S.P.R. 1 , ¶ 16.
¶21 Next, t he appellant notes that the Board has found that when mental
impairment played a part in misconduct, it will be given considerable weight as a
mitigating factor. PFR File, Tab 5 at 19 (citing Brown v. U.S. Postal Service ,
64 M.S.P.R. 425 , 434 (1994)). The appellant submitted evidence reflecting that
she was diagnosed with depression in April 2014 , and that it was an a ctive
problem as of October 2015. IAF, Tab 16 at 100. In response to the notice of
proposed removal, the appellant asserted that, at the time of her misconduct, she
was “extremely distressed” and that she made a “rash and impractical decision” as
a resul t. IAF, Tab 5 at 20, 27. The appellant testified that she suffered from
depression and insomnia at the time of the misconduct. HT at 132-33 (testimony
of the appellant).
¶22 Although the medical evidence does not appear to expressly show that the
appellan t suffered from depression at the time of the misconduct, on January 17,
2014, the proximity in time supports an inference that she was suffering from
depression during that time period as well. See Bowman v. Small Business
Administration , 122 M.S.P.R. 217 , ¶ 13 (2015). Accordingly, we find that the
appellant’s medical condition could have played a part in the charged conduct and
that this is entitled to considerable weight as a mitigating factor. Id.
¶23 The appellant likewise asserts that the deciding official failed to consider
her poor emotional state at the time of the misconduct and points out that, in her
Douglas factors worksheet, the deciding official did not refer to the appellant’s
personal stressors or emotional distress. PFR File, Tab 5 at 15-20. There is no
requirement that the decision notice contain specific, detailed information
demonstrating that the deciding official considered the relevant mitigating
factors. Wynne v. Department of Veterans Affairs , 75 M.S.P.R. 127 , 135 (1997).
Nonetheless , in the decision notice, the deciding official referenced the
11
appellant’s “significant marital problems.” IAF, Tab 5 at 12. She testified that
she considered the appellant’s marital difficulties and other stressors as
mitigating factors. H T at 58 (testimony of the deciding official). Accordingly,
we find that the agency demonstrated that the deciding official considered the
appellant’s emotional state at the time of the misconduct as a mitigating factor ,
although it is unclear whether she gave it “considerable weight .”
¶24 Even giving considerable weight to this mitigating factor, we find, as
discussed below, that removal was within the bounds of reasonableness. The
first, and most important, of the Douglas factors is the nature and seriousnes s of
the offense. Boo, 122 M.S.P.R. 100 , ¶ 18. Among the considerations included in
this factor is the relationship of the o ffense to the employee’s duties, position,
and responsibilities, including whether the offense was intentional or was
frequently repeated. Id.
¶25 Here, the appellant took records containing PII, to which she did not have
official access, and reviewed them be fore giving them to a third party. IAF,
Tab 5 at 65 -66. The administrative judge noted the deciding official’s testimony
that she considered the appellant’s misconduct to be a serious offense that went to
the core of her duties as an HR employee. ID at 14; HT at 31 (testimony of the
deciding official). The appellant herself testified that, as an HR employee, she
was responsible for protecting PII. HT at 103, 125 (testimony of the appellant).
The administrative judge thus found the appellant’s miscondu ct to be serious. ID
at 15-16.
¶26 We recognize that a number of mitigating factors we igh in the appellant’s
favor. S he had 15 years of Federal service, during which she consistently
received the highest performance ratings and received no discipline. IAF, Tab 16
at 4-34; HT at 48 (testimony of the deciding official). As discussed above, the
evidence indicates that the appellant’s depression may have played a part in the
misconduct, and it is apparent that difficulties in her marriage and personal life
played a central role in her decision to engage in the misconduct. HT at 104-113
12
(testimony of the appellant). She has also expressed remorse for her misconduct.
IAF, Tab 5 at 27; HT at 117, 125 -26 (testimony of the appellant).
¶27 However, based in part upon t he demeanor of the witnesses at hearing, the
administrative judge agreed with the deciding official that the appellant could not
be trusted to maintain her professional judgment in the event that she again
suffered difficulties in her personal life.9 ID a t 17. An administrative judge’s
credibility findings, when expressly or by necessary implication based on the
demeanor of witnesses, must be afforded special deference. Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016) (citing
Jackson v. Veterans Administration , 768 F.2d 1325 , 1331 (Fed. Cir. 1985)). The
Board may overturn such findings only if it can articulate sound reasons for doing
so. Social Security Administration v. Long , 113 M.S.P.R. 190 , ¶ 25 (2010) (citing
Haebe v. Department of Justice , 288 F.3d 1288 , 1300 (Fed. Cir. 2002)), aff’d ,
635 F.3d 526 (Fed. Cir. 2011) . We can discern no sound reason for overturning
the administrative judge’s finding that th e appellant cannot be trusted to maintain
her professional judgment and protect sensitive information in the future.
¶28 The appellant argues that the agency failed to consider the adequacy of
alternative sanctions. PFR File, Tab 5 at 24. The proposing off icial concluded
that the appellant’s continued employment with the office would undermine the
9 In her petition for review , the appellant asserts that the administrative judge
considered her emotional state at the hearing as an aggravating factor. PFR File, Tab 5
at 15 -16. To the extent the administrative judge found that the appellant’s “deep
emotional response” during the hearing makes it more likely she will lose her
professional judgment under difficult circumstances in the future, we agree that this
was improper. Character evidence adduced from conduct during Board proceedings
may not be considered to prove the conduct underlying an agency charge. See
Ibrahim v. Department of the Army , 30 M.S.P.R. 531 , 536 (1986) . We similarly find
that the appellant’s behavior during the hearing is not probative of her potential
behavior in the future. Nonetheless, it was not improper for the admini strative judge to
consider the appellant’s demeanor in assessing the credibility of her testimony
regarding her potential for rehabilitation. Thus, we find that the appellant has failed to
show that any error the administrative judge made in considering h er emotional state
harmed her substantive rights. See Karapinka v. Department of Energy , 6 M.S.P.R.
124, 127 (1981).
13
office’s credibility with its customers. IAF, Tab 5 at 45. The deciding official
reached a similar conclusion and found that reassignment would not be feasibl e
because positions within the organization required access to HR systems. Id.
at 12-14. Thus , we find that the deciding official considered reassigning the
appellant as an alternative penalty but found that such a penalty would be
inappropriate in this ca se. Moreover, there is no requirement that the agency
consider alternative penalties ; the agency is required to show only that the penalty
selected was reasonable. Thias v. Department of the Air Force , 32 M.S.P.R. 46 ,
49 (1989). After considering all the relevant Douglas factors, we find the
appellant’s removal to be within the bounds of reasonableness.
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. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and 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.
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
15
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 decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial 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.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroacti ve to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 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 | LOTT_ALICIAN_SF_0752_16_0490_I_1_FINAL_ORDER_2019935.pdf | 2023-04-10 | null | SF-0752 | NP |
3,301 | https://www.mspb.gov/decisions/nonprecedential/RICHARDS_NEAL_B_CH_0831_16_0410_I_2_FINAL_ORDER_2019231.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NEAL B. RICHARDS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0831 -16-0410 -I-2
DATE: April 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neal B. Richards , Saint Anthony, Minnesota, pro se.
Carla Robinson , 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 initial decision of the Office of Personnel Management (OPM),
denying his request that the amount of his service deposit be recalculated.
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. Partie s may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, wa s not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conc lude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On petition f or review, the appellant reiterates his argument below that
OPM erred in calculating the amount of the deposit due for his non -deductive
service performed between Januar y 20, 1996 , and February 15, 2003. Petition for
Review File, Tab 1 at 1 . In particular, he maintains that OPM should have used a
.8 percent rate instead of a 7 percent rate because 6.2 percent of his pay had been
deduc ted for Social Security during this time. Id. However, the administrative
judge addressed this argument and properly found that the appellant’s service was
not “covered service” within the meaning of the exception set forth in 5 U. S.C.
§ 8334 (c), and, thus, he was not eligible for a reduced deposit rate . On review,
the appellant does not dispute this finding, and we discern no error in the
administrative judge’s analysis. Accordingly, we affirm the initial decision.
3
NOTICE OF AP PEAL 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 foru m with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial rev iew in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at t he
following address:
2 Since the issuance of the initial decision in this matter, the Boa rd may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts. gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorse s the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 p repayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receiv es
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request f or review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial re view pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 allegat ions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for th e Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.m spb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represe ntation in a given case.
3 The original statutory provision that provided for judicial review of certai n
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSP B decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | RICHARDS_NEAL_B_CH_0831_16_0410_I_2_FINAL_ORDER_2019231.pdf | 2023-04-07 | null | CH-0831 | NP |
3,302 | https://www.mspb.gov/decisions/nonprecedential/GLOBOKAR_MARY_ANN_L_CH_0839_16_0596_I_1_FINAL_ORDER_2019253.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY ANN L. GLOBOKAR ,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.
DOCKET NUMBER
CH-0839 -16-0596 -I-1
DATE: April 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary Ann L. Globokar , Strongsville, Ohio, pro se.
James Jackson , Esquire , and James P. Burkes , Esquire, Cleveland, Ohio,
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 initi al decision, which
denied her request for corrective action under the Federal Erroneous Retirement
Coverage Corrections Act (FERCCA) . 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 consideri ng the 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 employed as a Budget Analyst. Initial Appeal File (IAF),
Tab 1. She contacted agency human resources staff in M ay 2016 and asserted
that the agency erroneously placed her in the Federal Employees ’ Retirement
System (FERS) instead of the Civil Service Retirement System (CSRS). IAF,
Tab 4 at 68. She stated that, although she did not have the requisite 5 years prior
to the creation of the FERS to exclude her from automatic FERS coverage , she
should have been given the requisite 5 years of service because the agency
intended her to enter on duty prior to her actual start date. Id. at 67-68. In
support of her claim, she submitted a May 9, 1983 letter that requested that she
3
enter on duty on June 20, 1983, which was prior to her actual entrance -on-duty
date on January 8, 1984. Id. at 71-72, 226 .
¶3 On August 18, 2016, the agency issued a decision determining that the
appellant was not entitled to corrective action under FERCCA because she did not
have the requisite 5 years of service on December 31, 1986 , that would exclude
her from automatic placement into FERS .3 Id. at 59-60. The agency included a
worksheet that in dicated that the appellant had 4 years, 3 months and 19 days of
service from Septe mber 1981 to December 31, 1986 , and that, regardless of the
letter requesting that she enter on duty on June 20, 1983, the documentation
reflect ed that she did not enter on d uty until January 8, 1984. Id. at 61.
¶4 The appellant filed the instan t appeal requesting corrective action under
FERCCA .4 IAF, Tab 1. She filed a brief in which she asserted, among other
things, that she was not required to serve 5 years to avoid autom atic FERS
coverage because of her interpretation of 5 U.S.C. § 8402 (b)(1) , which waived the
5-year rule for certain individuals . The administrative judge issued an initial
decision on the basis of the documentary evidence affirming the agency ’s
determination. IAF, Tab 16, Initial Decision (ID). She found that the appellant
was properly and automatically placed in to the FERS , that the agency did not
3 FERCCA addresses the problems created when employ ees are in the wrong retirement
plan for an extended period. 5 U.S.C. § 8331 Note ; Poole v. Department of the Army ,
117 M.S.P.R. 516 , ¶ 13 (2012); 5 C.F.R. § 839.101 (a). An employee may seek relief
under FERCCA if the employee experienced a “qualifying retirement coverage error,”
defined as an “erroneous decision by an employee or agent of the Government as to
whether Government service is CSRS covered, CSRS Offset covered, FERS cove red, or
Social Security –Only covered that remained in effect for at least 3 years of service after
December 31, 1986.” 5 C.F.R. § 839.102 . We agree with the administrative judge that
the Board has jurisdiction over this appeal under 5 U.S.C. § 8347 (d)(1) and 5 C.F.R.
§ 839.1302 because the appe llant asserted th at her service, including 1981 to the
present, was CSRS covered and she sought correction of an error in the agency ’s
decision regarding that service . IAF, Tab 16, Initial Decision (ID) at 1-2.
4 The appellant originally requested a hearing but later waiv ed that request and agreed
that the matter could be decided on the basis of the d ocumentary evidence. IAF,
Tabs 1, 6.
4
commit a prohibited personnel pract ice, that the agency wa s not estopped from
placing the appellant into the FERS, and that there was no bindin g agreement to
hire the appella nt at an earlier date. ID at 3 -8.
¶5 The appellant has filed a petition for review, the agency has responded in
opposition to her pe tition , and the appellant has filed a reply.5 Petition for
Review (PFR) File, Tabs 1 -2, 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Federal Employees ’ Retirement System Act of 1986 (the “FERS Act” )
became effective on June 6, 1986. Pub. L. No. 99 -335, 100 Stat. 514 (codified at
5 U.S.C. chapter 84) . Pursuant to the FERS Act, an employee that had at least
5 years of civilian service performed before January 1, 1987, tha t is creditable
under the CSRS , is covered under the CSRS, unless that individual elect ed to
participate in the FERS . 5 U.S.C. § 8402 (b)(2)(B). However, the FERS Act
excludes from automatic coverage certain high -ranking individuals in certain
situations , including, among others, the President and Vice President of the
United States, members of the Senior Executive Service, noncareer members of
the Senior Foreign Service, presidential appointees , and judges, as specified by
the Social Security Act, who performed service continuously fr om December 31,
1983. 5 U.S.C. § 8402 (b)(1) ; 42 U.S.C. § 410(a)(5)(C), (D), (E), and (F).
5 The appellant also has filed a motion for leave to submit additional evidence. Petition
for Review (PFR) File, Tab 7. Pleadings allowed on review include a petition for
review, a cross petition for review, a response to a petition for review, a response to a
cross petition for review , and a reply to a response to a petition for review. 5 C.F.R.
§ 1201.114 (a). No other pleading will be accepted unless the party files a motion with
and obtains leave from the Clerk of the Board. 5 C.F.R. § 1201.114 (a)(5). Such a
motion must describe the nature of and need for the pleading. Id. In her motion, the
appellant proposes to submit “an additional document which supports her claim for
retirement classification” and further states that she h as “f ound compelling evidence to
prove her claim for being enrolled in CSRS; hence to prove entitlement to corrective
action for retirement reclassification as allowed under FERCCA legislation.” PFR File,
Tab 7 at 4. We find this explanation insufficient and deny the appellant’s motion.
5
¶7 The appellant argues that she can rely upon the May 1983 letter in support
of her claim against automatic placement into the FERS. PFR File, Tab 1 at 7 -8.
She asserts that the letter is relevant and admissible hearsay evidence because it
demonstrate s that she was eligible and qualified for hire for e ntrance on duty on
June 20, 1983 , on the basis of her successful completion of the hiring
requirements . Id. The appellant does not dispute that, i n fact, she did not have
5 years of covered service before January 1, 1987. Further, as the agency points
out, even if the appellant had accrued the additional covered service had the
agency hired her on June 20, 1983 , instead of January 8, 1984, she still would not
have satisfied the requirement of 5 years of service.6 IAF, Tab 4 at 13.
Accordingly , consistent with 5 U.S.C. § 8402 (b)(2)( B), the appellant was
properly placed in the FERS retirement program. Further, regardless of whether
the appellant had entered on duty prior to December 31, 1 983, as the
administrative judge stated, neither the student trainee position to which she was
appointed, nor the General Schedule Electronic Systems Mechanic Apprentice
position to which she was converted , were included in the aforementioned
positions tha t were statutorily excluded from the 5 -year requirement . ID at 5;
IAF, Tab 4 at 218-32; 42 U.S.C. § 410(a)(5)(C), (D), (E), and (F). Accordingly,
consistent with 5 U.S.C. § 8402 , the agency properly and automatically placed the
appellant in the FERS.
¶8 Nevertheless, the appellant reasserts that before 1986, agency officials
knew or should have known about the upcoming enactment of the FERS A ct on
the basis of prior legislation and executive actions that foreshadowed the FERS
Act and that she should not be required to prove how the agency ’s ignorance of
the laws affected her. PFR File, Tab 1 at 5 -7. However, as the administrative
6 Prior to January 1, 1987, the appellant had 4 years , 2 months , and 19 days of service
and the additional service from June 20, 1983 , to January 8, 1984 , would have added
less than 7 months, totaling less than the requisi te 5 years of service. IAF, Tab 4 at 13,
61, 217 -32; see 5 U.S.C. § 8402 (b)(2)(B).
6
judge stated, it is well settled that public officers are presumed to perf orm their
duties in good faith. ID at 5; see, e.g. , Preyor v. U.S. Postal Service , 83 M.S.P.R.
571, ¶ 22 (1999). We find the appellant ’s assertion that agency officials delayed
her entrance on duty from June 20, 1983 , to January 8, 1984 , to interfere with her
rights under the FERS Act, which was not enacted until 1986 , is insufficient to
overcome this presumption. See Preyor , 83 M.S.P.R. 571 , ¶ 22 (finding that there
was nothing in the record to sug gest that agency officials promoted the appellant
to deny him appeal right s, and thus the appellant failed to rebut the presumption
that public official s perform ed their duties in go od faith and in accordance with
law and regulations).
¶9 Next, the appellant challenges the administrative judge ’s finding that she
did not prove that the agency should be equitably estopped from placing her in
the FERS. PFR File, Tab 1 at 7. She asserts that the agency and the
administrative judge improperly required her to prove that the agency committed
miscondu ct. Id. She further asserts that it would be impossible for someone to
prove misconduct regarding the delay in processing her paperwork when this
delay occurred over 30 years ago , but that a reasonable person could infer that the
hiring date was signific antly later, thus indicating circumstances, conditions,
events, or situations that caused the delay. Id. As the administrative judge
stated, however, even if the appellant had proven that the agency had engaged in
misconduct thus entitling her to equitab le estoppel ,7 this doctrine is inapplicable
when , as here, the appellant is seeking variance from the terms of the FERS,
which would involve a larger payment from the U.S. Treasury. ID at 7 ; see Office
of Personnel Management v. Richmond , 496 U.S. 414 , 416 (1990) (stating that
payments of moneys from the Federal treasury are limited to those authorized by
7 As the administrative judge explained, when seeking equitable esto ppel in a case
against Federal G overnment officials, an appellant must show that (1) the officials
engaged in affirmative misconduct , and (2) she reasonably relied upon the misconduct.
ID at 6 -7; Perez Peraz a v. Office of Personnel Management , 114 M.S.P.R. 457 , ¶ 9
(2010).
7
statute, and the G overnment cannot be esto pped from denying benefits not
otherwise permitted by law solely on equitable grounds); Resnick v. Office of
Personnel Management , 120 M.S.P.R. 356 , ¶ 11 (2013).
¶10 The appellant emphasizes that, regardless of the cause, it was through no
fault of her own that she was placed in the FERS. Id. at 8. Nevertheless,
pursuant to 5 U.S.C. § 8402 (b)(2)(B), she did not have the requisite 5 years of
service to exclude h er from coverage under the FER S. Therefore, we find that
she is not entitled to corrective action under FERCCA.8
¶11 Accordingly, we affirm the initial decision .
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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
8 The appellant has attached legislative and executive documents to her petition for
review and reply. PFR File, Tab 1 at 10 -27, Tab 5 at 8 -11. To the extent that these
documents were not submitted below before the administrative judge , we have not
considered this evidence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980 ) (finding that, u nder 5 C.F.R. § 1201.115 , the Board will not consider evidence
submitted for the first time with the petition for review absen t a showing that it was
unavailable before the record was closed despite the party's due diligence ). The
appellant has failed to demonstrate why she could not have submitted this evidence
prior to the close of the record below.
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.
8
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an a ppeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neit her endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed t hat you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claim s—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 r equest review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives thi s decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Feder al Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Opera tions
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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).
10 The original statutory provision th at provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GLOBOKAR_MARY_ANN_L_CH_0839_16_0596_I_1_FINAL_ORDER_2019253.pdf | 2023-04-07 | null | CH-0839 | NP |
3,303 | https://www.mspb.gov/decisions/nonprecedential/MARKHAM_JOHN_SF_3443_20_0726_I_1_FINAL_ORDER_2019496.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN MARKHAM,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-3443 -20-0726 -I-1
DATE: April 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Markham , Cedar Rapids, Iowa, pro se.
Regan Elisabeth Russell , Joint Base Lewis -McChord , Washington, 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 of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely file d by 494 days without good cause shown. 5 C. F.R.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
§ 1201.114 (e), (g). The initial decision remains the final decision regarding
jurisdiction over this appeal as expressly MODIFIED to fi nd that the Board also
lacks jurisdiction over the appellant’s purported claims of defamation, theft, and
breach of contract.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 In September 2020, t he appellant filed a Board appeal challenging the
circumstances surrounding the alleged premature termination of his personal
services contract with the agency, wherein he contracted to provide services as a
Cardiac Perfusionist at the agency’s Madigan Arm y Medical Center be tween 2007
and 2009. Initi al Appeal File (IAF), Tab 1 at 1, 3-5. On November 16, 2020 , the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdic tion. IAF, Tab 17 , Initial Decision (ID) at 1 -6. In the initial decision , the
administrative judge notified the appellant of his appeal rights and stated that the
decision would become final on December 21, 2020, unless a petition for review
was filed by that date. ID at 6 -14. On April 29, 2022 , the a ppel lant filed a
petition for review , 494 days after the initial decision became final . Petition for
Review (PFR) File, Tab 1. The Office of the Clerk of the Board advised the
appellant that his petition for revie w was untimely and instructed him how to file
a motion to establish good cause for the untimely filing. PFR File, Tab 2 at 1 -2.
Thereafter, the appellant filed a pleading stating that the Board informed him that
he did not have appeal rights and that he did not have legal r epresentation.
PFR File, Tab 5 at 1 -2. He also made several arguments related to the merits of
the agency’s alleged premature termination of his contract. Id.
¶3 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C .F.R.
§ 1201.114 (e). The Board will waive its filing deadline only upon a showing of
3
good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To establish good
cause for an unti mely filing, the appellant must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 5 (2014). 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, wheth er he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune that
similarly shows a causal relations hip to his inability to timely file his petition for
review. 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).
¶4 The appellant’s pe tition for review was due on December 21, 2020. ID at 6 ;
see 5 C.F.R. § 1201.114 (e). It was filed 494 days late, on April 29, 2022.
PFR File, Tab 1 . Applying the factors above, we find that the appellant has failed
to establish good cause for his approximately 1 1/2 -year delay in filing his
petition for review. Although he is proceeding pro se, the initial decision s et
forth the procedures and time limits that the appellant was required to follow if he
wished to appeal , and a 1 1/2 -year delay is significant. See Johnson v. U.S.
Postal Service , 66 M.S.P.R. 604 , 608 (1995) (finding the appellant failed to
establish good cause for h is 1 -year delay in filing his petition for review
notwithstanding his discouragement at the likely outcome of the pe tition for
review and his inability to obtain representation ); see also De Vaughn v. U.S.
Postal Service , 96 M.S.P.R. 427, ¶¶ 8-9 (2004) (stating that pro se status alone is
insufficient to establish good cause for an untimely filing when the appellant was
clearly notified of the time limit within which to file his petition). Inability to
obtain representation does not constitute good cause for an untimely filing.
Johnson , 66 M.S.P.R. at 608. Finally, t he appellant’s arguments about the merits
4
of the agency’s action are irrelevant to the issue of the timeliness of the petitio n
for review. See, e.g. , Abney v. Office of Personnel Management , 89 M.S.P.R.
305, ¶ 4 (2001) (stating that merits arguments do not establish good cause for an
untimely filing) , aff’d , 41 F. App’ x 421 (Fed. Cir. 2002).
¶5 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the pe tition for review. The initial decision remains the final deci sion of the
Board regarding jurisdiction over the appeal, as expressly modified by this
paragraph. The initial decision explicitly dismissed the appellant’s IRA and
discrimination claims for l ack of jurisdiction. ID at 1-6. To the extent the
appellant sought to file claims against the agency asserting breach of contract,
defamation, and theft, IAF, Tab 1 at 3 -5, we clarify that the Board also lacks
jurisdiction over those claims, see Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985) (holding that the Board’s jurisdiction is limited to
those matters over w hich it has been given jurisdiction by law, rule, or
regulation); Ward v. Office of Personnel Management , 103 M.S.P.R. 24 , ¶ 5
(2006) ( noting that the Board generally lacks jurisdiction to adjudicate contract
claims brought against the United States) , aff’d , 217 F . App’x 937 (Fed. Cir.
2007) ; Kapica v. U.S. Postal Service , 95 M.S.P.R. 556 , ¶ 6 (2004) (stating that
the Board lacks jurisdiction over defamation claims) .
NOTICE OF APPEAL RIG HTS2
You m ay obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
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 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.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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 by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited pe rsonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or an y court of appeals of
8
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 w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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.
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.
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 | MARKHAM_JOHN_SF_3443_20_0726_I_1_FINAL_ORDER_2019496.pdf | 2023-04-07 | null | SF-3443 | NP |
3,304 | https://www.mspb.gov/decisions/nonprecedential/NJEMANZE_SHARON_P_DC_0845_17_0740_I_1_FINAL_ORDER_2018850.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARON P. NJEMANZE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0845 -17-0740 -I-1
DATE: April 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wayne Caraway , Washington, D.C., for the appellant.
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 petiti on for review of the initial decision, which
dismissed for lack of jurisdiction the appeal of the reconsideration decision of the
Office of Personnel Management (OPM) finding that she received an
overpayment of disability retirement annuity benefits under the Federal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
Employees’ Retirement System . On petition for review, the appellant asserts that
she intends to submit additional documentation concerning her monthly
expenditures , and she requests relief from the Board because she claims that she
cannot afford to repay the overpayment . Petition for Review File, Tab 1.
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 procedur es or 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 bas is under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F. R. § 1201.113 (b).
¶2 The appellant’s arguments on the merits of the appeal are not relevant to the
jurisdictional issue before the Board . For the reasons discussed in the initial
decision, we find that the administrative judge properly dismissed this appe al for
lack of jurisdiction . Initial Appeal File, Tab 10, Initial Decision at 1 -2; see
Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531, ¶ 5 (2006). If
the appellant is dissatisfied with any subsequent OPM reconsideration or final
decision regarding her disability retirement benefits, she may appeal that decision
to the Board. See 5 U.S.C. § 8461 (e)(1); 5 C.F.R. § 841.308 . Any future appeal
must be filed within the time limits set forth in the Board’s regu lations. See
5 C.F.R. § 1201.22 (b)(1).
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 the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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 th e district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repre sentation 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
webs ites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportu nity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity C ommission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commissio n
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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
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 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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | NJEMANZE_SHARON_P_DC_0845_17_0740_I_1_FINAL_ORDER_2018850.pdf | 2023-04-06 | null | DC-0845 | NP |
3,305 | https://www.mspb.gov/decisions/nonprecedential/COGAN_RONALD_L_CH_3443_17_0171_I_1_FINAL_ORDER_2018909.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONALD L. COGAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-3443 -17-0171 -I-1
DATE: April 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald L. Cogan , Akron, Ohio, pro se.
Roderick D. Eves , Esquire, St. Louis, Missouri , for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the agency’s correction of his seniority date following a
reassignment for lack of jurisdiction . Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 mat erial evidence or legal 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, a preference eligible, is employed by the agency as a
Buildin g Equipment Mechanic. Initial Appeal File (IAF), Tab 8 at 10. In a letter
dated January 12, 2017, the Complement Coordinator notified him that a review
of his voluntary reassignment history revealed that his seniority date of
January 15, 2011, was incorr ect and had to be corrected to May 31, 2014, the
effective date of his voluntarily reassignment. Id. at 9. The appellant appealed
the correction of his seniority date to the Board , alleging that the “review of [his]
voluntary reassignment request . . . was triggered by another Postal Employee
who filed an [equal employment opportunity (EEO)] complaint saying that [ the
appellant ] got [his] seniority because [he] was a white male, and she did not get
her seniority restored because she was a black female.” Id. at 5. He further
alleged that the “agency singled [him] out for this alleged review based upon
previous [Board] /EEO/Union Activity.” Id.
3
¶3 The administrativ e judge notified the appellant that the Board generally
lacks jurisdiction over voluntary tran sfers and the loss of seniority resulting from
a voluntary transfe r and set forth his burde n of proof to establish Board
jurisdiction over a claim of enforced leave, a constructive suspension, and a
violation of the Uniformed Services Employment and Reempl oyment Rights Act
of 1994 .3 IAF, Tab s 2, 4 -5. In response, the appellant appeared to allege that his
reassignment was no t voluntary and submitted a number of documents related to
the collective bargaining agreement and evidence showi ng that he is a
preference -eligible veteran. IAF, Tabs 6 -7.
¶4 The administrative judge also notified the appellant of his burden of proof
to establish his affirmative defenses of reprisal for prior equal employment
opportunity (EEO) activity, retaliation for filing a pri or Board appeal, and
whistleblower reprisal based on a protected disclosure under 5 U.S.C.
§ 2302 (b)(8), and ordered him to submit specific evidence and argument in
support of his claims . IAF, Tab 9. In response, the appellant asserted the
following: (1) he had a charge pending with the Department of Labor regarding
the agency’s failure to provide documentation for the collective bargaining
procedure; (2) he previously file d a Board appeal; (3) h e has been a union steward
and a union officer; (4) an African American employee told him that she “was
filing an EEO complaint to change [his] seniority”; (5) the Complement
3 Generally, an appellant must receive explicit inf ormation on what is required to
establish an appealable jurisdictional issue. See Burgess v. Merit Systems Protection
Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). Here, although the administrative judge
provided the appellant notice of various methods of establishing Board jurisdiction, she
did not provide him notice regarding the Board’s jurisdiction under 5 U.S.C. chapter 75.
IAF, Tabs 2, 4 -5, 9. However, an administrative judge’s failure to provide an appellant
with proper Burgess notice can be cured if the agency’ s pleadings put the appellant on
notice of what he must do to establish jurisdiction, thus affording him the opportunity
to meet his jurisdictional burden on review . Easterling v. U.S. Postal Service ,
110 M.S.P.R. 41 , ¶ 11 (2008). We find that the agency’s motion to dismiss cured the
deficient notice by setting forth the appellant’s burden of proof to establish an
appealable adverse action un der 5 U.S.C. chapter 75 . IAF, Tab 8 at 6 -7.
4
Coordinator and the Manager of Human Resources “divulge[d] information of a
perso nnel [sic] nature to the EEO parties”; and (6) the Complement Coordinator
“has not reviewed the seniority of other employees that transferred into the
Cleveland office as a result of reassignment.” IAF, Tab 10 at 3.
¶5 Without holding the appellant’s reque sted hearing , the administrative judge
issued an initial decision finding that he failed to establish jurisdiction over his
challenge to the agency’s calculation of his seniority date and that, absent an
otherwise appealable action, the Board could not adj udicate his affirmative
defenses. IAF, Tab 13, Initial Decision (ID). Accordingly, she dismissed the
appeal for lack of jurisdiction. ID at 3.
¶6 The appellant has filed a petition for review of the initial decision , arguing
that the Complement Coordinat or improperly changed his seniority date on two
occasions and that administrative judge failed to evaluate his appeal under
5 U.S.C. § 2302 (b)(9). Petition for Review (PFR) File, Tab 1 at 3 -5. The agency
has not responded to the appellant’s petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board does not have jurisdiction over all matters involving Federal
employees that are alleged to be unfair or incorrect ; rather, it is limited to th ose
matters over which it has been given jurisdiction by law, rule, or regulation.
Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985);
Johnson v. U.S. Postal Service , 67 M.S.P.R. 573 , 577 (1995). If the employee
makes a nonfrivolous allegation of jurisdiction, i.e., an allegation that, if proven,
could establish the Board’s jurisdiction, he is entitled to a hearing at which he
must prove jurisdiction by a preponderance of the evidence.4 Garcia v.
4 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be t rue than untrue. 5 C.F.R. § 1201.4 (q).
5
Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed . Cir. 2006) (en
banc).
¶8 A preference -eligible Postal Service employee with at least 1 year of
current continuous service in the same or similar positions may file a Board
appeal of certain agency actions under 5 U.S.C. chapter 75. Gordon -Cureton v.
U.S. Postal Service , 105 M.S.P.R. 165 , ¶ 6 (2007). Such appealable adverse
actions include the following : a removal ; a suspension for more than 14 days; a
reduction in grade; a reduction in pay; and a furlough of 30 days or less. 5 U.S.C.
§ 7512 . Here, although it is undisputed that the appellant is a preference eligible
and has more than 1 year of current continuous service in the same or similar
position, he has not nonfrivolously alleged that the agency s ubjected him to any
appealable action under chapter 75. IAF, Tabs 1, 6 -7, 10; PFR File, Tab 1. In the
absence of a reduction in pay or grade, the appellant ’s loss in seniority and
reassignment , even if involuntary, are not appealable adverse actions unde r
chapter 75. See 5 U.S.C. §§ 7512 , 7513(d).
¶9 In addition, absent an otherwise appealable action, the Board lacks
jurisdiction over claims of prohi bited personnel practices under 5 U.S.C.
§§ 2302 (b)(8) and 2302(b)(9) . See Flores v. Department of the Army ,
98 M.S.P.R. 427 , ¶ 9 (2005 ); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2
(1980) , aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). The appellant’s argument
on review that his claim should be evaluated under section 2302(b)(9), rather than
section 2302(b)(8), provides no basis to disturb th is finding. Like claims of
prohibited personnel practices under section 2302(b)(8), c laims of prohibited
personnel practices under section 2302(b)(9) cannot serve as an independent basis
for finding Board jurisdiction. See Flores , 98 M.S.P.R. 427 , ¶ 9. Furthermore,
the appellant may not file an individual right of action appeal based on alleged
prote cted activity described under 5 U.S.C. § 2302 (b)(9 ) because Postal Service
employees are not covered by t he Whistleblower Protection Act or the
6
Whistleblower Protection Enhancement Act. See Ma tthews v. U.S. Postal
Service , 93 M.S.P.R. 109 , ¶ 13 (2002); see also 39 U.S.C. § 410(a).
¶10 We have considered the appellant’s remaining arguments but find that they
do not constitute nonfrivolous allegations of Board jurisdiction. In light of the
foregoing, we agree with the administ rative judge’ s determination that the Board
lacks jurisdiction over this appeal .5
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for 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
5 Before the initial decision was issued , the appellant filed a “[m]otion for discovery”
with the Board seeking documentation pertaining to his seni ority date, an EEO
complaint filed by another employee, and his reassignment. IAF, Tab 11. The
administrative judge found that her dismissal of the appeal for lack of jurisdiction
rendered the appellant’s motion for discovery moot. ID at 3 n.4. The app ellant appears
to renew his request for discovery on review, stating that the agency’s documentation
would show that other reassigned veterans have not had their seniority dates changed.
PFR File, Tab 1 at 5. A n appellant may request discovery of relevan t materials to help
him meet his b urden of establishing the Board’s jurisdiction. Parker v. Department of
Housing and Urban Development , 106 M.S.P.R. 329 , ¶ 9 (2007). For the reasons
discussed above, however, we find that the documentation requested by the appellant is
irrelevant to his jurisdictional burden. Therefore, we discern no error in the
administrative judge’s ruling that the appellant’s motion was moot in light of her
dismissal of the appeal for lack of jurisdiction.
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 indica ted in the notice, the
Board cannot advise which option 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 car efully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit yo ur petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’ s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repre sentation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circui t. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 represen tative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informati on for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any su ch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your represe ntative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COGAN_RONALD_L_CH_3443_17_0171_I_1_FINAL_ORDER_2018909.pdf | 2023-04-06 | null | CH-3443 | NP |
3,306 | https://www.mspb.gov/decisions/nonprecedential/LINDSAY_CASH_AT_0752_16_0429_I_1_FINAL_ORDER_2018944.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASH LINDSAY,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -16-0429 -I-1
DATE: April 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan R. Bell , Esquire, and Susan Tylar , Esquire, Garden City, New
York, for the appellant.
Carley D. Bell , Arlington, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative 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 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. 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 c onsistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available whe n the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to find that the appellant failed to establish that his due process
rights were violated because the deciding official lacked, or believed that he
lacked, the authority to take or recommend action other than removal in this case,
we AFFIR M the initial decision.
¶2 The appellant was removed from his position as a Tr ansportation Security
Inspector –Explosives Detection Canine Handler with the Transportation Security
Administration (TSA) after he allegedly failed to provide an adequate breath
sample for an alcohol test. Initial Appeal File (IAF), Tab 5 at 36 -42. He argues
that his due process rights were violated because the deciding official lacked the
authority , or believed that he lacked the authority , to mitigate the proposed
removal regardl ess of any argument or evidence that the appellant presented in
3
reply to the proposal notice.3 Petition for Review ( PFR ) File, Tabs 1, 10. The
appellant has the burden of proving his affirmative defense by preponderant
evidence.4 5 C.F.R. § 1201.56 (b)(2)(i)(C).
¶3 We find that the appellant’s argument fails for two reasons. First, the
provisions of Management Directive 1100.75 -3 and the accompanying Handbook,
rather than chapter 75 of Title 5 of the U.S. Code, govern disciplinary actions
against TSA employees. Buelna v. Department of Homeland Security ,
121 M.S.P .R. 262 , ¶ 5 n.2 (201 4); see 49 U.S.C. §§ 114 (n), 40122(g)(2). The
Handbook provides that t he agency generally will take the Douglas factors5 into
account when issuing disciplinary action. IAF, Tab 5 at 366; see Buelna ,
121 M.S.P.R. 262 , ¶ 33. However, the Handbook pr ovides that the Douglas
factors do not apply to certain offenses for which removal is required, including
the “[r]efusal to submit to TSA -ordered drug or alcohol testing.” IAF, Tab 5
at 366, 373. Accordingly, we find that if the deciding official had dec lined to
consider any mitigating factors in this case, he did so in accordance with the law.6
¶4 Second, we find that the deciding official’s testimony indicates he
understood that if he had concluded that the appellant should not have been
removed due to some exculpatory or mitigating reason , he would have sent such
3 The appellant raised this issu e before the administrative judge. IAF, Tab 48 at 4 -7.
The administrative judge addressed the issue as an error in the weighing of the
appropriate penalty rather than as a due process issue . IAF, Tab 49, Initial Decision
at 10, 13 -15. We modify the initial decision to address the argument as one regarding
the appellant’s due process rights.
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5 See Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981) (setting forth the
factors appropriate to consider in determining the reasonableness of an agency -imposed
penalty in an action covered by 5 U.S.C. chapter 75).
6 The Handbo ok provides for an exception to the mandatory removal policy. IAF, Tab 5
at 373 n.1 . The deciding official testified to his awareness of the exception. Hearing
Transcript 2 at 4, 10 (testimony of the deciding official).
4
information to his supervisors to make a determination on what to do. H earing
Transcript 2 (HT -2) at 66, 75 (testimony of the deciding official) . We find that
his testimony is consistent with th e scope of his authority under the agency’s
rules for a mandatory removal offense, such as refusal to submit to alcohol
testing, and that the appellant received a meaningful opportunity to invoke all of
the discretion afforded by agency rules. IAF, Tab 5 at 366, 373 & n.1. Although
due process requires that “a deciding official must possess authority to take or
recommend action, due process does not require ‘unfettered discretion to take any
action he or she believes is appropriate’ or require ‘consider[a tion of] alternatives
that are prohibited, impracticable, or outside of management’s purview.’”
Calhoun v. Department of the Army , 845 F.3d 117 6, 1179 (Fed. Cir. 2017 )
(quoting Rodgers v. Department of the Navy , 122 M.S.P.R. 559 , ¶ 6 (2015 )).
¶5 At the hearing, t he deciding official confirmed that he took into
consideration the appellant ’s reply to the proposal notice, that the appellant had
been employed with the agency since 2005 , and that he had previously been
employed with the U.S. Air Force. HT-2 at 9 -10, 16 (testimony of the deciding
official). The decision notice additionally reflects that the deciding official
considered the appellant’s prior satisfactory performance ratings.7 IAF, Tab 5
at 40-42. Had the deciding official believed that he had no discreti on in the
matter , there would have been little reason for him to have even considered such
mitigating circumstances. Accordingly, we find that the appellant failed to prove
that the deciding official lacked, or believed that he lacked, the authority to ta ke
or recommend any action other than removal in his case. See Davis v. U.S. Postal
Service , 120 M.S.P.R. 457 , ¶ 16 n.4 (2013) (uph olding an appellant’s removal for
conduct violating an agency ’s “zero tolerance” policy when the deciding official
gave bona fide consideration to the relevant Douglas factors).
7 On review, the appellant has no t alleged that the deciding official failed to consider
any other mitigating factors . PFR File, Tabs 1, 10.
5
¶6 The appellant does not otherwise challenge the administrative judge’s
findings, PFR File, Tabs 1, 10, and we find no material error with the initial
decision.8 Accordingly, we affirm the appellant’s removal from the Federal
service.
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 claims determines the time limit for seeking such review and 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 fi ling time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
8 In his reply to the agency’s response to the petition for review, the appellant notes that
he still disputes the factual basis for his removal bu t omits such arguments from his
reply , without conceding them, because they would be out of place . PFR File, Tab 10
at 7 n.1. Because the appellant has not identified any specific error with the initial
decision in this regard, he has failed to establish a basis for the Board ’s review of the
administrative judge’s factual determinations. 5 C.F.R. § 1201.115 (a)(2).
9 Since the issuance of the i nitial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
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 claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the 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
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to fi le petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
Contact information for the courts of appeals can be 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 | LINDSAY_CASH_AT_0752_16_0429_I_1_FINAL_ORDER_2018944.pdf | 2023-04-06 | null | AT-0752 | NP |
3,307 | https://www.mspb.gov/decisions/nonprecedential/PEARSON_GREGGORY_J_DC_0752_15_0507_B_1_FINAL_ORDER_2018955.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GREGGORY J. PEARSON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -15-0507 -B-1
DATE: April 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Greggory J. Pearson , Washougal, Washington, pro se.
Richard C. Wolfe , Esquire, and Cassie Lynn Fowler , Fort Huachuca,
Arizona, 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 remand initial decision,
which dismissed his involuntary retirement appeal for lack of jurisdiction . In his
remand petition for review, the appellant reasserts that his retirement was
involuntary based on duress in the period leading up to the parties’ settlement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
agreement and resulting retirement, as well as breach of that settlement
agreement.2 Genera lly, 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 applica tion 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 th e outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore , we DENY the petition for review and AFFIRM the remand initial
decision. Because we agree that the alleged breach of the parties’ settlement
agreement was immaterial, we VACATE t he administrative judge ’s alternative
findings that the agency was not respo nsible for the breach .
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 . Y ou may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
2 The appellant requested leave to file an additional pleading, beyond his remand
petition for review and reply, Petition for Review File, Tab 5, but that request is denied.
See 5 C.F.R. § 1201.114 (a) (explaining that there are only limited pleadings that are
allowed to be filed on petition for review).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicab le to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices o f review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . A s a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of thi s decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for 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 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
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative r eceives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Fe deral Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
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
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 w ebsites, 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 | PEARSON_GREGGORY_J_DC_0752_15_0507_B_1_FINAL_ORDER_2018955.pdf | 2023-04-06 | null | DC-0752 | NP |
3,308 | https://www.mspb.gov/decisions/nonprecedential/COLEMAN_NINA_M_DA_3443_17_0273_I_1_FINAL_ORDER_2018969.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NINA M. COLEMAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-3443 -17-0273 -I-1
DATE: April 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nina M. Coleman , Dallas, Texas, pro se.
Morgan Kinney , 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
dismissed her appeal of the agency action removing her from her Disaster
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Assistance Employee position because the authority under which she was
appointed specified that that she was appointed “without re gard to the provisions
of Title 5.” For the reasons set forth below, we VACATE the initial decision and
DISMISS the appeal for lack of jurisdiction, relying on a different legal basi s
than the administrative judge.
BACKGROUND
¶2 Beginning June 8, 2008, the appellant was continuously employed with the
agency as a Disaster Assistance Employee (DAE)3 under a series of temporary
appointments. Initial Appeal File (IAF), Tab 8 at 68‑91, 97. The legal authority
identified on the appellant ’s Standard Form (SF) 50 for the appointment is Pub.
L. No. 93 -288, known as the Stafford Act.4 Id. at 97. By a letter dated
February 13, 2017, the appellant was informed that she was terminated, effective
immediately, based on one specification of failure to follow instruction s and one
specification of failure to f ollow a written agency policy. IAF, Tab 8 at 60 -63.
The termination letter informed the appellant that , because of the nature of her
appointment under the Stafford Act, she was not entitled to Board appeal rights,
but that she could appeal the final decision to the agency ’s Cadre Management
and Training Branch Chief within 5 days. Id. at 62. The letter also informed the
appellant that , if she believed that her termination was the result of prohibited
discrimination , she could file a complaint with the agency ’s Equal Employment
Opportunity office. Id.
3 The agency noted and the appellant does not dispu te that in November 2011, the
agency changed the designation of the DAE position title to “Reservist. ” IAF, Tab 8
at 9, 82.
4 The legal authority for the appellant’s appointment was the Disaster Relief Act of
1974 (1974 Act), Pub. L. No. 93 -288, 88 Stat 143, which was amended by the Disaster
Relief and Emergency Assistance Amendments of 1988 (1988 Act), Pub. L.
No. 100-707, 102 Stat. 4689. Section 102(a) of the 1988 Act renamed the 1974 Act
“The Robert T. Stafford Disaster and Emergency Assistance Act ” (Stafford Act)
(codified as amended at 42 U.S.C. § 5121 et seq. ).
3
¶3 On April 13, 2017, the appellant filed the instant appeal with the Board
challenging her termination. IAF, Tab 1. The agency filed a motion to dismiss
the appeal for lack of jurisdiction. IAF, Tab 8 at 7 -19. The administrative judge
informed the appellant in a show cause order that the Board may not have
jurisdiction over her appeal. IAF, Tab 12. The appellant filed a response to the
order. IAF, Tab 14. In an in itial decision, the administrative judge dismissed the
appeal for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). The
administrative judge determined that because the appellant ’s appointment was a
temporary appointment made pursuant to the Staf ford Act, her position was
excluded from coverage under chapter 75 of Title 5. ID at 5.
¶4 In reaching this decision, the administrative judge relied on an Office of
Personnel Management (OPM) regulation, 5 C.F.R. § 752.401 (d)(12), which
states that “[a]n employee whose agency or position has been excluded from the
appointing provisions of Title 5, United States Code, by separate statutory
authority ” is excluded from coverage of 5 U.S.C. chapter 75 unless there is a
provision specifically placing that employee under the protections of chapter 75.
Id. Citing similar language in the Stafford Act authorizing the agency to hire
temporary personnel “without regard to the provisions of Title 5 of the United
States Code, ” the administrative judge determined that the Board lacked
jurisdiction to review the appellant ’s termination. ID at 5; see 42 U.S.C.
§ 5149 (b)(1). The administrative judge also cited Thiess v. Witt , 100 F.3d 915 ,
916-17 (Fed. Cir. 1996), in which the U.S. Court of Appeals for the Federal
Circuit determined th at similar language elsewhere in the Stafford Act excluded
those appellants from coverage under certain provisions of 5 U.S.C. chapter 63
pertaining to leave. ID at 5.
¶5 The appellant has filed a petition for review arguing that the Board has
jurisdiction over her termination appeal and that the agency violated her
Constitutional due process rights in remov ing her . Petition for Review (PFR)
File, Tab 1 at 4 -6. The agency has filed a response in opposition to the
4
appellant ’s petition, and s he has filed a reply and supplem ental reply. PFR File,
Tabs 3 -4, 6.
DISCUSSION OF ARGUME NTS ON REVIEW
We vacate the administrative judge ’s finding that the language of 42 U.S.C.
§ 5149 precludes Board jurisdict ion over the appellant’ s appeal of her removal .
¶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). The appellant has the burden
to prove by preponderant evidence that her appeal is within the Board ’s
jurisdiction. 5 C.F.R. § 1201.56 (b)(2)(i)(A). A preponderance of the evidence is
that degree of relevant evidence that a reasonable person, considering the record
as a whole, would accept as sufficie nt to find that a contested fact is more likely
to be true than untrue. 5 C.F.R. § 1201.4 (q).
¶7 As noted above, the administrative judge based her decision tha t the Board
lacked jurisdictio n over the appellant ’s appeal on OPM regulation 5 C.F.R.
§ 752.401 (d)(12), coupled with language in the Stafford Act stating that
appointments were made under that hiring authority “witho ut regard to the
provisions of Title 5. ” ID at 5. However, in reaching this decision, the
administra tive judge did not consider the Federal Circuit ’s decision in Lal v.
Merit Systems Protection Board , 821 F.3d 1376 (2016). The appellant in Lal
appealed her removal as a Distinguished Consultant at the Department of Health
and Human Services, which was a position created under a statutory special
appointment authority, 42 U.S.C. § 209 (f). Id. at 1377. The administrative judge
dismissed the appeal for lack of Board jurisdiction, concluding that section 209(f)
granted appointments “without regard to civil -service laws, ” and that , under
5 C.F.R. § 752.401 (d)(12), this language deprived the Board of jurisdiction over
the appellant ’s removal appeal. Lal v. Department of Health and Human
Services , MSPB Docket No. DC -0752 -14-0852 -I-1, Final Order, ¶ 2 (Mar. 25,
2015). The Board agreed, affirming the initial decision. Id., ¶¶ 4-14; Lal ,
5
821 F.3d at 1377 -78. However, on appeal, the Federal Circuit reve rsed the Board,
concluding that under the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111 , and the Civil Service Due Process Amendments of 1990, Pub. L.
No. 101 -376, 104 Stat. 461 (codified in relevant part at 5 U.S.C. § 7511 ), absent a
specific exclusion of appeal rights or exemption from section 7511 ’s definition of
“employee, ” a statute broadly exempting an appointment from “the civil -service
laws ” did not strip the Board of j urisdiction to hear an appeal from an adverse
action taken against that employee. Lal, 821 F.3d at 1379-80. Instead, the
Federal Circuit concluded, the Board must look to the language of the
appointment authority to determine whether it included a specific exclusion of
chapter 75 appeal rights. Id. at 1380 -81. The court also concluded that to the
extent OPM ’s interpretation of 5 C.F.R. § 752.410 (d)(12) called for a contrary
result, it had “no force or effect. ” Id. at 1381. Concluding that nothing in the
broad statutory language stating th at appointments under section 209(f) were
made “without regard to the civil -service laws ” exempted the appellant ’s position
from section 7511(a) ’s definition of “employee, ” the Federal Circuit reversed and
remanded the Board ’s decision. Id.
¶8 Subsequently, in Malloy v. Department of State , 2022 MSPB 14, the Board
applied the Federal Circuit ’s decision in Lal for the fi rst time, reversing and
remanding the initial decision dismissing the appellant ’s adverse action appeal for
lack of Board jurisdiction. In Malloy , the Board concluded that the implementing
language for the appointment authority at issue in that case only explicitly
excluded “chapter 51 and subchapter III of chapter 5 3 of Title 5, ” and made no
reference to cha pter 75 appeal rights. Id., ¶ 12. Relying on Lal, the Board
concluded that because the appointing authority did not explicitly exclude
appointees from the protections of chapter 75 (specifically, those relating to
removal), as it did with chapter 51 and subchapter III of chapter 53, the appellant
was not precluded from pursuing her appeal rights pursuant to chapter 75. Id.
6
¶9 In the instant case, the administrative judge observed that the Stafford Act
authorized agencies to hire temporary personnel “without regard to the provisions
of Title 5, ” and to “employ experts and consultants in accordance with [ 5 U.S.C.
§ 3109 ], without regard to the provisions of chapter 51 and subchapter III of
chapter 53 [of Title 5] . . . .” ID at 5; see 5 U.S.C. § 5149 (b)(1). Relying on this
language, as well as OPM ’s language in 5 C.F.R. § 752.401 (d)(12), the
administrative judge concluded t hat the Board lacked the authority to review the
termination of any employee hired under the Stafford Act, including the
appellant. ID at 5. Although not noted by the administrative judge, s ignificantly,
the language of the Stafford Act does not exclude such employees from the
coverage of chapter 75.
¶10 In light of the Federal Circuit ’s decision in Lal, and the Board ’s decision in
Malloy , the administrative judge ’s conclusio n—that the “without regard to the
provisions of Title 5 ” language in the Stafford Act appointing authority
categorically precluded Board review of the termination of any employee hired
under the Ac t—was in error. Instead, as the Board noted in Malloy , to decide
whether an agency action falls within the coverag e of chapter 75, the statutory
language authorizing the employee’s appointment must be examined to discern
whether the action is specifically excluded from the coverage of chapter 75. See
Lal, 821 F.3d at 1379 -81; Malloy , 2022 MSPB 14, ¶¶ 9 -13. We therefore vacate
the administrative judge ’s finding in this regard.
We dismiss the appellant’s appeal for lack of jurisdiction becaus e she does not
meet the statutory definition of “employee ” under 5 U.S.C. § 7511 (a)(1) .
¶11 Although the holdings in Lal and Malloy instruct that the “without regard to
the provisions of Title 5 ” language of the Stafford Act is insufficient to
categorically exclude individuals appointed under that act from chapter 75
coverage, nothing in either decision alter ed the appellant ’s obligation to
otherwise demonstrate that she meets the definition of an “employee ” with
chapter 75 appeal rights in order to prove that the Board has jurisdiction over her
7
appeal . Specifically, the appellant still must show that she is an “employee ” with
Board appeal rights as defined by 5 U.S.C. § 7511 (a)(1). See Lal , 821 F.3d
at 1379 -81.
¶12 The appellant argued below that the she qualifies as an “employee ” under
section 7511(a)(1) because she was (1) an individual in the excepted service, who
(2) was not serving a probationary or trial period under an initial appointment
pending conversion to the competitive service. IAF, Tab 4 at 3; see ID at 3.
Under 5 U.S.C. § 7511 (a)(1)(C), a nonpreference eligible in the excepted service
only qualifies as an “employee ” with Board appeal rights if she:
(i) is not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service; or
(ii) has completed 2 years of current continuous service in the same
or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less.
5 U.S.C. § 7511 (a)(1)(C) . The Board has jurisdiction if either 5 U.S.C.
§ 7511 (a)(1)(C)(i) or (ii) is satisfied. Van W ersch v. Department of Health and
Human Services , 197 F.3d 1144 , 1151 (Fed. Cir. 1999) .
¶13 As the administrative judge correctly noted, the appellant did not provide
any evidence demonstrating that s he was serving in a probationary or trial period
or that her position was one that was pending conversi on to the competitive
service. ID at 2. Instead, the administrative judge noted that the appointments
each had a “not to exceed date” and thus were temporary appointments in the
excepted service. ID at 2, 5. Indeed , as the administrative judge noted, the
condition -of-employment document signed by the appellant prior to the effective
date of her f irst temporary appointment states that the appellant ’s appointment is
a “temporary civil service excepted position, ” and that the appellant could be
“terminated at any time, with cause . . . or without ca use . . . . ” ID at 2 ; IAF,
Tab 8 at 103 .
¶14 Reviewing the SF -50s in the appellant ’s submitted personnel file, the
administrative judge also observed that the SF -50 documenting the appellant ’s
8
first temp orary appointment identified her appointment as a “not to exceed ”
(NTE) appointment.5 ID at 2. Additionally, box 34 of each of the SF-50s
documenting the subsequent temporary appointment renewals identified the
appointment type as within the excepted service , the appellant ’s tenure as “none, ”
and her work schedule as “intermittent .” IAF, Tab 8 at 72, 75, 78, 82 -83, 86, 89,
97. Each of the appellant ’s temporary appointments also specified a n NTE date
that was less than 2 years i n the future, and none of the appointments exceeded a
2-year period , disqualifying the appellant from coverage under
section 7511(a)(1)(C)(ii). Id.; see Roy v. Meri t Systems Protection Board ,
672 F.3d 1378 , 1381 (2012) (noting that the language of section 7511(a)(1)(c)(ii)
“leaves no room to doubt that the two -year continuity requirement must be
satisfied by service in the same or similar permanent positions ”) (emphasis in
original) ; see also OPM Guide to Processing Personnel Actions ,6 Ch. 35 at 15 ,
available at https://www.opm.gov/policy -data-oversight/data -analysis -
documentation/personnel -documentation/processing -personnel -actions/gppa35.
pdf (noting that a temporary appointment is one made for a limited period of time
with a specific NTE date determined by the authority under which the
appointment is made) .
¶15 Further , nothing in the language of the Stafford Act specifies that
appointments made under the Act are subject to a probationary or trial period or
that they are positions “pending conversion to the competitive service. ” See
5 Although “the SF -50 is not a legally operative document controlling on its face an
employee’s status and rights,” it still can be considered as evidence when determ ining
the nature of an action. Grigsby v. Department of Commerce , 729 F.2d 772 , 776 (Fed.
Cir. 1984).
6 While OPM guides and handbooks lack the force of law, the Board has held that they
are entitled to deference in proportion to their power to persuade. See Warren v.
Department of Transportation , 116 M.S.P.R. 554 , ¶ 7 n.2 (2011) (addressing an OPM
retirement handbook), aff’d , 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of
Personnel Management , 110 M.S.P.R. 667 , ¶ 9 n.3 (2009) (granting “some deference”
to an OPM retirement h andbook). Here, OPM’s Gui de is persuasive as to its definition
of a temporary appointment).
9
generally 42 U.S.C. § 5121 et seq. To the contrary, the statutory provisions of
the Stafford Act grant agencies the authority to appoint “temporary personnel,
experts, and consultants ” and to incur obligations “arising out of the temporary
employment of additional personnel . . . .” 42 U.S.C. § 5149(b) (emphasis
added) .
¶16 Accordingly, we dismiss the appeal for lack of Board jurisdiction because
the appellant has failed to demonstrate that she meets the statutory definition of
an “employee ” with Board appeal rights under 5 U.S.C. § 7511 (a)(1) .7
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 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 re quirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
7 It appears that the appellant is requesting to join an Individual Right of Action (IRA)
appeal to this matter. PFR File, Tab 6 at 3; see Coleman v. Department of Homeland
Security , MSP B Docket No. DA -1221 -17-0500 -W-1. However, because the Board lacks
jurisdiction over the appellant’s removal appeal in the insta nt case, her request is
denied . The appellant has filed a petition for review of the initial decision in her IRA
appeal and th e Board will issue a separate decision in that case.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case . If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
11
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 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, th e
address of the EEOC is:
12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices des cribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 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).
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, 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.
13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If 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 | COLEMAN_NINA_M_DA_3443_17_0273_I_1_FINAL_ORDER_2018969.pdf | 2023-04-06 | null | DA-3443 | NP |
3,309 | https://www.mspb.gov/decisions/nonprecedential/BERGUELICH_DC_0831_17_0089_I_1_FINAL_ORDER_2018331.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BERGUELICH,
Appellant s,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER S
DC-0831 -17-0089-I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel T. Camche , Esquire, New York, New York, for the appellant s.
Carla Robinson , 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 s have filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction their appeal of the October 17, 2016
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
reconsideration decision by the Office of Personnel Management (OPM) .
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 ne w and material
evidence or legal 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 s have not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellants are two children of a decea sed Federal employee and his late
wife . Consolidation Appeal File ( CAF), Tab 1 at 2, 10.3 In 2013, the appellants
applied to receive the “accrued but unpaid annuity ” owed to their father and the
“accrued but unpaid survivor benefits ” owed to their mother . Id. at 10. In an
October 7, 2014 initial decision, OPM denied their request and, in an October 17,
2016 reconsideration decision, affirmed its initial decision. Id. at 5-6. The
appellants timely appealed OPM’s reconsideration decision to the Board. CAF,
Tab 1. OPM moved to dismiss the appeal on the grounds that , upon further
3 The two appellants filed identical separate appea ls. Mirian Berguelich v. Office of
Personnel Management , MSPB Docket No. DC -0831 -17-0087 -I-1, Initial Appeal File,
Tab 1; Delia Berguelich v. Office of Personnel Management , MSPB Docket
No. DC-0831 -17-0086 -I-1, Initial Appeal File, Tab 1. The regional office consolidated
the appeals, assigning MSPB Docket No. DC -0831 -17-0089 -I-1 as the fixed -lead docket
number. CAF, Tab 1 at 1.
3
review, it had determined that the reconsideration decision was deficient and had
“completely rescinded” it . CAF, Tab 9 at 4. OPM indicated that it would issue a
new reconside ration decision after the appeal was dismissed. Id. In an initial
decision issued 5 days later, the administrative judge found that OPM completely
rescinded the final decision, thereby divesting the Board of jurisdiction, and
dismissed the appeal for lac k of jurisdiction. CAF, Tab 10, Initial Decision (ID).
¶3 The appellants have filed a petition for review of the initial decision,
arguing that the administrative judge misapplied the law, ignored the Board’ s
regulations, and disregarded her own assurances t hat the appellants would be
allowed to respond to the agency’s motion before she decided the appeal.
Petition for Review (PFR) File, Tab 2 at 4.4 OPM has not responded to the
appellant s’ petition.
¶4 If OPM completely rescinds a reconsideration decision, its rescission
completely divests the Board of jurisdiction over the appeal in which the
reconsideration decision is at issue , and the appeal must be dismissed. Rorick v.
Office of Personnel Management , 109 M.S.P.R. 597 , ¶ 5 (2008). Here, OPM
asserts that it has “completely rescinded” the reconsideration decision in this
appeal and that it will issue a new reconsideration decision after the appeal is
dismissed.5 CAF, Tab 9 at 4. While the appellant s object to the dismissal of the
appeal, they do not dispute that the reconsideration decision has been rescinded.
4 Along with their petition for review, the appellants submitted a motion to reconsider
the initial decision and an opposition to the agency’s motion to dismiss directed to the
administrative judge. PFR File, Tab 2 at 5-7. The Board’s regulations do not provide
for these submissions on review, and we have therefore not considered them. See
5 C.F.R. § 1201.114 (a) (identifying the pleadings allowed on review).
5 Although the reconsideration decision at issue in this appeal is dated October 17,
2016, OPM’s motion to dismiss indi cates that it has completely rescinded its
October 16, 2016 reconsideration decision. CAF, Tab 9 at 4, 6 -7. Neither party has
alleged that there are two reconsideration decisions dated within 1 day of each other,
and the incorrect date in OPM’s motion to dismiss appears to be a typographical error.
Therefore, we have construed OPM’s motion to dismiss as pertaining to its October 17,
2016 reconsideration decision. Id.
4
PFR File, Tab 2. Thus, we conclude that OPM has completely rescinded its
reconsideration decision, thereby rem oving the matter from the Board’ s
jurisdiction , and find that the administrative judge correctly dismissed the appeal
for lack of jurisdiction . Rorick , 109 M.S.P.R. 597 , ¶ 5.
¶5 We find no merit to the appellant s’ contention on review that, pursuant to
the Board’s decision in Frank v. Office of Personnel Management , 113 M.S.P.R.
164, ¶ 8 (2010), dismissal is inappropriate here because OPM did not express any
intent to reverse or modify its initial decision. PFR File, Tab 2 a t 4. In Frank ,
the Board found that the administrative judge erred in dismissing the appeal as
moot following OPM’s rescission of its final decision and assurance that it would
grant the appellant a disability retirement benefit, but ultimately concluded that
OPM’s rescission of its final decision divested the Board of jurisdiction over the
appeal and dismissed it for lack of jurisdiction . Frank , 113 M.S.P.R. 164 , ¶¶ 8-9.
Here, neither party has alleged that OPM’s actions potentially rendered this
appeal moot , and, even if there was a question of mootness , dismissal for lack of
jurisdiction would still be appropriate given OPM’s complete rescission of the
reconsideration d ecision at issue in the appeal. Id.; CAF, Tab 9; PFR File, Tab 2.
¶6 We further find no merit to the appella nts’ contention that the
administrative judge “ignored” 5 C.F.R. § 1201.29 (b), which concerns the
administrative judge’s discretionary authority to dismiss an appeal without
prejudice “when the interests of fairness, due process, and administrative
efficiency outweigh any prejudice to either party .” PFR File, Tab 2 at 4. As
discussed above, the administrative judge properly dismissed the appeal for lack
of jurisdiction as a result of OPM ’s complete rescission of its reconsideration
decision , which divested the Board of jurisdiction over the appeal. ID at 1 -2.
Here , the administrative judge ’s dismissal is appropriate under the circumstances ,
notwithstanding any possible prejudice to the appellants; simply put, the case
must be dismissed because the Board now lacks jurisdiction over the appeal . See
Rorick , 109 M.S.P.R. 597 , ¶ 5.
5
¶7 We additionally find unavailing the appellants’ apparent contention that the
administrative judge erred by dismissing the appeal for lack of jurisdiction
because OPM “only wants to rewrite its reconsideration letter (as it had already
done twice), for no discernable purpose except [further] unwarranted delay –
further wasting its own resources and those of the Board, and with serious
prejudice to appellants.” PFR File, Tab 2 at 4. Although the Board may take
jurisdiction over a retire ment appeal if the appellant has made repeated requests
for a reconsideration decision and the evidence shows that OPM does not in tend
to issue a final decision, see, e.g. , Fletcher v. Office of Personnel Management ,
118 M.S.P.R. 632 , ¶ 5 (2012), there is no indication here that OPM does not
intend to issue a reconsideration decision . Rather, OPM indicated its intent to
issue a new reconsideration decision once this appeal is dismissed. CAF, Tab 9 at
4. OPM’s alleged dilatory handling of the appellants’ application for benefits
provides no basis for the Board to assert jurisdiction over this appeal.
¶8 Lastly, we agree with th e appellants that the a dministrative judge should not
have dismissed the appeal without first providing them an oppo rtunity to object to
the agency’ s motion to dismiss. See Administrative Judge’s Handbook, Ch. 5,
§ 2(b) ( stating that an administra tive jud ge “should not rule on substantive,
controversial, or complex motions without allowing the opposing party an
opportunity to object ”). We find, however, that this procedural error did not
adversely affect the appellants’ substantive rights and provides no basis to disturb
the initial decision. See Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127
(1981) (providing that the administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights) .
¶9 In light of the foregoing, we deny the appellants’ petition for review and
affirm the initial decision. If the appellant s are dissatisfied with OPM’s new
reconsideration decision, they may appeal that decision to the appropriate Board
6
regional office. Any future appeal must be filed within the tim e limits set forth in
the Board’ s regulations. See 5 C.F.R. § 1201.22 .
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judici al review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have update d
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropri ate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protecti on 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
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 requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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
9
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in 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.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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower cl aims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in cer tain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BERGUELICH_DC_0831_17_0089_I_1_FINAL_ORDER_2018331.pdf | 2023-04-05 | null | S | NP |
3,310 | https://www.mspb.gov/decisions/nonprecedential/VOLSON_DESELLE_DA_0752_17_0446_I_1_FINAL_ORDER_2018373.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DESELLE VOLSON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
DA-0752 -17-0446 -I-1
DA-1221 -17-0494 -W-1
DA-3330-17-0402 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Beverly A. Banks , Lawton, Oklahoma, for the appellant.
Ouida F. Adams , Shreveport, Louisiana, for the agency.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed petition s for review of the initial decision s, which
dismissed her probationary termination and individual right of action ( IRA)
appeals for lack of jurisdiction and denied her corrective action under the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Veterans Employment Opportunit ies Act (VEOA).2 On petition for review, the
appellant again claims that she is an employee with chapter 75 appeal rights
because the agency failed to issue a revised Standard Form 50 (SF-50) after
rescinding the initial termination action , that she has a regulatory right to appeal
her termination under 5 C.F.R. §§ 315.804 -.806 , and that her termination was
erroneous . Volson v. Department of Veterans Affairs , MSPB Docket
No. DA-0752 -17-0446 -I-1, Petition for Review File, Tab 1 at 5-9. She further
argues that she exhausted her remaining claims with the Office of Special
Counsel (OSC), proving that she is entitled to a hearing on her IRA claims.
Volson v. Department of Veterans Affairs , MSPB Docket No. DA-1221 -17-0494 -
W-1, Petition for Review (0494 PFR) File, Tab 1 at 3 -6. She also alleges that the
administrative judge improperly weighed contradictory evidence and denied her
an opportunity to engage in discovery in her IRA appeal. Id. at 4-5. Finally, she
claims that she is entitled to corrective action under VEOA because she proved
that the agency violated 5 U.S.C. § 2302 (b)(11) by terminating her. Volson v.
Department of Veterans Affairs , MSPB Docket No. DA-3330 -17-0402 -I-1,
Petition for Review File, Tab 1 at 15-18.
¶2 Generally, we grant petitions such as t hese 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
2 We JOIN the three appeals under 5 C.F.R. § 1201.36 (b) because doing so would
expedite the p rocessing of the appeals without adversely affecting the interests of the
parties. The appellant also has filed an appeal under the Uniformed Employment and
Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C.
§§ 4301 -4335), which the Board will review separately , Volson v. Department of
Veterans Affairs , MSPB Docket No. DA -4324 -17-0401 -I-1.
3
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
considering the filings i n these appeal s, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petition s for review and AFFIRM the initial decision s,
which are now the Board’s final decis ions. 5 C.F.R. § 1201.113 (b). We address
the appellant’s claims that were not considered in the initial decision s and the
arguments she raises on review .
¶3 The administrative judge found that the appellant was terminated in
March 2017, with 10 months of Federal civilian service. Volson v. Department of
Veterans Affairs , MSPB Docket No. DA-0752 -17-0446 -I-1, Initial Appeal File
(044 6 IAF), Tab 7, Initial Decis ion at 3-5. The agency’s apparent failure to issue
a revised SF -50 does not itself raise a genuine dispute of material fact whether the
appellant was terminated . While an SF -50 is the customary documentation for a
Federal personnel action, it is not a le gally operative document controlling , on its
face, an employee’s status and rights . Scott v. Department of the Air Force ,
113 M.S.P .R. 434 , ¶ 8 (20 10). The appellant’s arguments from bel ow—that she
has not worked for or returned to duty since March 17, 2017 —support that
finding . 0446 IAF, Tab 4 at 4 -5; see Scott , 113 M.S.P.R. 434 , ¶ 8 ( explaining that
the Board looks at the totality of the circumstances to determine the nature of the
personnel a ction). She has not provided argument or evidence to the contrary.
Cf. Yiying Liu v. Department of Agriculture , 106 M.S.P.R. 178 , ¶¶ 8-10 (2007)
(finding that the appellant nonfrivolously alleged that she was an employee with
chapter 75 appeal rights by alleging and submitting leave and earning statement s
indicating that she was in leave without pay status upon the expiratio n of her
prob ationary period).
¶4 As to the IRA appeal, the administrative judge found that the appellant did
not exhaust what the administrative judge construed as alleged disclosures under
4
5 U.S.C. § 2302 (b)(8) and protected activity under section (b)(9)(B) —that she
disclosed to her supervisor harassment based on her disabled veteran status and
receipt of veterans’ preference and that she refused to participate in another’s
equal employment opportunity ( EEO ) complaint. Volson v. Department of
Veterans Affairs , MSPB Docket No. DA-1221 -17-0494 -W-1, Initial Appeal File
(0494 IAF), Tab 24, Initial Decision (0494 ID) at 7 -8. On review, the appellant
argues that she exhausted “all avenues of redress” within OSC. 0494 PFR File,
Tab 1 at 4-5. In support, she submits a July 27, 2017 letter from OSC , reflecting
that she alleged in her OSC complaint that her supervisor harassed and bullied her
and that she was terminated for requesting reasonable accommodations . Id. at 4,
7; see Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013) (finding
that the Board may consider evidence submitted for the first time on review if it
implicates the Board’s jurisdiction and warrants an outcome different from that of
the initial decision). After the issuance of the initial decision, the Board clar ified
that an appellant has met the substantive requirements of exhaustion when she has
provided OSC with a sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The administrative judge
already found that the appellant exhausted her claims that she was terminated and
harassed because of her disabled veterans’ status and for req uesting a reasonable
accommodation . 0494 ID at 7-9. However, even considering her additional
evidence, we find that the appellant has not established that she exhausted her
additional claims with OSC.3
3 Even if the appellant exhausted her additional claim s, they would not be a basis fo r
finding the Board has jurisdiction over her IRA appeal. The former involves USERRA
retaliation that, as with h er USERRA discrimination claim, is more appropriately
addressed in her separate USERRA appeal. 0494 ID at 10; Volson v. Department of
Veterans Affairs , MSPB Docket No. DA-4324 -17-0401 -I-1. As to the latter, the
appellant has not nonfrivolously alleged that she testified for or otherwise lawfully
assisted another in the exercise of an y appeal, complaint, or grievance right granted by
law, rule, or regulation as provided under 5 U.S.C. § 2302 (b)(9)(A). Cf. Viens -Koretko
v. Department of Veterans Affairs , 53 M.S.P.R. 160 , 163 ( 1992) (noting that the
5
¶5 Additionally, while the appellant claims that the administrative judge
credited the agency’s assertions that she easily could have obtained a copy of her
OSC complaint , 0494 PFR File, Tab 1 at 4, there is no indication he made that
finding . Rather, h e relied on the undisputed fact that the appellant had not
submitted her OSC complaint or an affidavit explaining the claims she exhausted
with OSC. 0494 ID at 7-8. Furthermore, we cannot ascertain from the
appellant’s vague claim what discovery error the administrative judge purportedly
made. 0494 PFR File , Tab 1 at 5. The administrative judge informed her of the
availability of discovery and the deadline for initi ating discovery requests.
0494 IAF, Tab 2 at 2 -3. To the extent that the appellant alleges that the
administrative judge erred in denying her motion to compel, 0494 IAF, Tab 16 ,
we discern no prejudice to her substantive rights because the discovery sought
was not pertinent to the exhaustion issue. See Davis v. Department of Defense ,
103 M.S.P.R. 516, ¶ 13 (2006).4
¶6 Finally, a ssuming that 5 U.S.C. § 2302 (b)(11) is a veterans’ preference
statute, the appellant has not proven by preponderant evidence that the agency
violated it by terminating her. See Isabella v. Department of State , 106 M.S.P.R.
333, ¶¶ 21 -22 (2007) (explaining that the appellant must prove, in part, that the
agency violated her rights under a statute or regulation relating to veterans’
preference to be entitled to corrective action under 5 U.S.C. § 3330a (a)(1)(A)) ,
aff’d on reconsid ., 109 M.S.P.R. 453 (2008) . She failed to show that the agency
violated one of the veterans’ preference requirements specifically enumerated in
5 U.S.C. § 2302 (e)(1), as is required to prove a violation of 5 U.S.C.
§ 2302 (b)(11). See generally Loggins v. U.S. Postal Service , 112 M.S.P.R. 471 ,
¶ 15 (2009) (noting that vet erans’ preference rules appear to apply only to hiring
appellant’s act of testifying for another employee at an EEO hearing constitutes an
activity that is specifically protected under 5 U.S.C. § 2302 (b)(9)(B) ).
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
and retention during a reduction in force). Therefore, her arguments on review do
not prove that she is entitled to corrective action under 5 U.S.C. § 3330a (a)(1)(A)
or 5 U.S.C. § 2302 (b)(11), assuming that the Board may order a remedy in a
VEOA appeal for a violation of that provision.5
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 Even if the appellant’s USERRA discrimination claims were an alleged violation of a
veterans’ preference requirement or her veterans’ preference rights, she may not
simultaneously seek relief under VEOA for that claim. See Letchworth v. Social
Security A dministration , 101 M.S.P.R. 269 , ¶ 14 (2006) (explaining that 5 U.S.C.
§ 3330a (e)(2) prohibits a preference eligible from pursing a claim of a violation of a
veterans’ preference statute or regulation under any other law, rule, or regulation).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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
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
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Sy stems
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 ma y be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in sec tion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent j urisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
7 The original statutory provision that provided for judicial review of certain
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.
10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | VOLSON_DESELLE_DA_0752_17_0446_I_1_FINAL_ORDER_2018373.pdf | 2023-04-05 | null | DA-1221 | NP |
3,311 | https://www.mspb.gov/decisions/nonprecedential/MILLER_CRISTINA_DC_3443_16_0787_I_1_FINAL_ORDER_2018487.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CRISTINA MILLER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3443 -16-0787 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cristina Miller , APO , AE, pro se.
Saegleo Santiago , APO, AE, for the agency.
William Blackston , Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of 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 app eal 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 appellant, a GS -12 Industrial Engineer, filed an appeal in which she
alleged that she had interviewed for the pos ition of Interdisciplinary Aerospace
Engineer, but was not selected, and that she subsequently learned that there were
various hiring irregularities in the selection process. Initial Appeal File (IAF),
Tab 1 at 5. Specifically, she alleged that the selec ting official wished to select a
personal friend, and that the announcement was initially canceled because the
friend had not applied and needed more time to improve his qualifications so that
he could be selected, which he was. Id.
¶3 In acknowledging the appeal, the administ rative judge explained that
nonselections generally are not appealable to the Board, except when the
appellant alleges that an emp loyment practice applied by the Office of Personnel
Management (OPM) violated a basic requirement of 5 C.F.R. § 300.103 , he has
received a negative suitability determination from the agency or OPM, or the
agency’s decision was made in retaliation for whistleblowing disclosures or
certain pro tected activities, the product of discrimination based on uniformed
service, or a violati on of the candidate’s veterans’ preference. IAF, Tab 2. The
3
administrative judge ordered the appellant to file evidence and argument that the
action she sought to ap peal was within the Board’s jurisdiction. Id. The
appellant did not respond. The agency moved that the appeal be dismissed for
lack of jurisdiction.3 IAF, Tab 5 at 9 -10, Tab 6 at 10 -11.
¶4 In an initial decision based on the written record , the administrative judge
dismissed the appeal for lack of jurisdiction.4 IAF, Tab 7, Initial Decision (ID)
at 2, 5. He found that the appellant did not assert that she was subjected to an
action over which the Board has jurisdiction , and that she had no t raised any other
matters that would bring her appeal within the Board’s jurisdiction. ID at 3 -5.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4,
and the appellant has filed a repl y. PFR File, Tab 5.
¶6 On review, the appellant states that she did not, in her appeal , challenge h er
nonselection, but rather the agency’s abuse of the hiring process based on the
selecting official’s desire to hire a persona l friend . PFR File, Tab 1 at 4. Based
on the appellant’s narrative within her appeal , IAF, Tab 1 at 5, and all that she
submitted below, we find that t he administrative judge reasonably construed th at
the appellant was raising a claim of nonselection, an d properly set out the limited
circumstances over which the Board may have jurisdiction over such a claim.
Burroughs v. Department of the Army , 116 M.S.P.R. 292 , ¶ 15 (2011) ( reviewing
a claim that an employment practice applied to the appellant by OPM violated a
basic requirement of 5 C.F.R. § 300.103 ); Alvarez v. Department of Homeland
Security , 112 M.S.P.R. 434, ¶ 7 (2009) ( reviewing a claim that the appellant has
received a negative suit ability determination from the agency or OPM); Becker v.
Department of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 15 ( 2007 ) (analyzing a
claim that the agency ’s decision was in retaliat ion for whistleblowing disclosures
3 The agency also moved that the appeal be dismisse d as untimely. IAF, Tab 6 at 11 -12.
4 Based on this disposition, the administrative judge did not address the timeliness of
the appeal. ID at 1 n.1.
4
or certain protected activities, the product of discrimination based on uniformed
service, or a violati on of the candidate’s veterans’ preference rights). As noted,
the appellant failed to respond to the administrative judge ’s jurisdictional order.
¶7 The appellant has not established the Board’s jurisdiction over her claim
that the agency abused the hiring process. Notwithstanding her failure to reply to
the administrative judge ’s jurisdictional order, we have considered whether her
claim could loosely be considered as one of an employment practice . She has not
alleged, however, nor does it appear , that OPM h ad any involvement in the
selection action at issue . Further , although the appellant alleges that the selecting
official considered nonmerit factors in making his selection, such a claim,
standing alone, does not provide the Board with jurisdiction over this matter.
Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (explaining that
prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independe nt
source of Board jurisdiction) , aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) .
¶8 In sum, we find that the appellant has not s hown error in the administrative
judge ’s dismissal of this appeal for lack of jurisdiction.5
5 With her petition, the appellant has submitted, presumably as new evidence,
Reference A, which purports to be a copy of her September 21, 2016 answers to the
agency’s interrogatories . PFR File, Tab 1 at 6 -19. The record below closed on
September 3, 2016. IAF, Tab 2 at 6. The appellant asserts that she did not receive the
agency’s interrogatories until S eptember 8, 2016. PFR File, Tab 5 at 5. Even if the
appellant’s answers could be considered as new evidence, such evidence is not material
because it does not bear on the dipositive jurisdictional issue of this appeal . Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( finding that the Board generally
will not grant a petition for review based on new evidence absent a showing that it is o f
sufficient weight to warrant an outcome different from that of the initial decision). The
appellant has also filed a Motion for Agency’s Response to Interrogatories. PFR File,
Tab 3. She claims that the agency failed to respond to the interrogatories she
propound ed during the proceeding below, id. at 4, a claim the agency disputes. PFR
File, Tab 4 at 9 n.2. Even if we credit the appellant’s assertion in this regard, she
acknowledges that she did not initiate discovery until September 21, 2016, id., well
after September 8, 20 16, the date by which the administrative judge indicated that
discovery must be initiated. IAF, Tab 2 at 7. Therefore, we deny the appellant’s
motion.
5
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statu te, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 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.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
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,
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
8
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.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 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.
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.
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 | MILLER_CRISTINA_DC_3443_16_0787_I_1_FINAL_ORDER_2018487.pdf | 2023-04-05 | null | DC-3443 | NP |
3,312 | https://www.mspb.gov/decisions/nonprecedential/MILLIGAN_JOHNNY_LEE_DC_4324_16_0805_I_1_FINAL_ORDER_2018490.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHNNY LEE MILLIGAN,
Appellant,
v.
GOVERNMENT OF THE DI STRICT
OF COLUMBIA,
Agency.
DOCKET NUMBER
DC-4324 -16-0805 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Johnny Lee Milligan , Tallahassee, Florida, pro se.
Frank J. McDougald , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant filed a petition for revie w of the initial decision, which
dismissed this appeal for lack of jurisdiction . Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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
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 Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to clarify that the Board lacks jurisdiction under
the Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) because the
appellant was not employed by a Federal executive agency , we AFFIRM the
initial decision .
¶2 The appellant, a former emplo yee of the G overnment of the District of
Columbia, previously filed an appeal regarding a 2009 reduction in force (RIF)
and had asserted that the RIF violated his veterans’ preference rights. Milligan v.
Government of the District of Columbia , MSPB Docket No. DC -0351 -13-1299 -
I-1, Initial Appeal File (1299 IAF), Tab 1. The administrative judge dismissed
that appeal for lack o f jurisdiction because the appellant was not an employee in
the civil service and because he had not exhausted his administrative remedy with
the Department of Labor (DOL) . 1299 IAF, Tab 8, Initial Decision. On review,
the Board affirmed the initial deci sion. Milligan v. Government of the District of
Columbia , MSPB Docket No. DC-0351 -13-1299 -I-1, Final Order (Aug. 11, 2014).
¶3 The appellant filed the instant appeal pursuant to USERRA after exhausting
his administrative remedy with DOL. Milligan v. Governm ent of the District of
3
Columbia , MSPB Docket No. DC -4324 -16-0805 -I-1, Initial Appeal File (0805
IAF) , Tab 1. The administrative judge dismissed the appeal fo r lack of
jurisdiction because , as a former employee of the G overnment of the District of
Columbia, the appellant failed to meet the statutory definition of an “employee”
under 5 U.S.C. § 2105 (a)(1) and thus did not have the right to appeal to the
Board . 0805 IAF, Tab 7, Initial Decision ; see 5 U.S.C. § § 2101- 2103, 2105;
Cyrus v. Government of the District of Columbia , 25 M.S.P.R. 396, 397 n.*
(1984).
¶4 On review, the appellant asserts that the Board has jurisdiction over his
claims under USERRA and the Veterans Employment Opportunities Act of 1998
(VEOA) . Petition for Review ( PFR ) File, Tab 1 at 4. We clarify that, pursuant to
38 U.S.C. §§ 4303 (5), 4324, the appellant does not have a right to appeal to the
Board because USERRA requires that he was employed by a Federal executive
agency and the G overnment of the District of Columbia does not constitute a
Federal executive agency . 5 U.S.C. § 105. Additionally, although the appellant
claims that he is a preference eligible, he has not described any action under
VEOA over which the Board has jurisdiction and has not establi shed that he
suffered an appealable RIF over which the Board has jurisdiction . 0805 IAF,
Tab 1; PFR File, Tab 1 at 4 ; see 5 U.S.C. § § 3330a , 3304, 3502 . Accordingly, we
find that he has not provided a basis for disturbing 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
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
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
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 ad vice 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 sh ould immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informa tion.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for 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 receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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
6
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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judi cial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
7
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 App eals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the cour t’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal C ircuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney n or warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for j udicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 | MILLIGAN_JOHNNY_LEE_DC_4324_16_0805_I_1_FINAL_ORDER_2018490.pdf | 2023-04-05 | null | DC-4324 | NP |
3,313 | https://www.mspb.gov/decisions/nonprecedential/KELLEY_YOLANDA_D_AT_0752_17_0093_I_1_FINAL_ORDER_2018498.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
YOLANDA D. KELLEY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -17-0093 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raymond E. Tillery, Jr. , Esquire, Columbus, Georgia, for the appellant.
Anne M. Norfolk , Fort Benning, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINA L ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of her allegedly involuntary
resignation. 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 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
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.
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 After the agency den ied her request for reasonable accommodation, the
appellant resigned from her GS -0665 -12 Audiologis t position effective October 4,
2016. Initial Appeal File (IAF), Tab 1 at 8 -12. Thereafter, she filed an appeal in
which she contended that her re signation was involuntary due to intolerable
working conditions and a denial of reasonable accommodation for her disability.
IAF, Tab 1. After issuing appropriate Burgess notice,3 to which the appellant did
not respond, the administrative judge issued an initial decision on the written
record in which he found that the appellant failed to make a nonfrivolous
allegation of involuntariness. IAF, Tabs 4 -5. He therefore dismissed the appeal
for lack of jurisdiction.
3 An appellant is entitled to a hearing on the issu e of Board jurisdiction over an appeal
of an allegedly involuntary resignation or retirement only if she makes a nonfrivolous
allegation casting doubt on the presumption of voluntariness. Burgess v. Merit Systems
Protection Board , 758 F.2d 641 , 643 (Fed. Cir. 1985).
3
¶3 The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency responds in opposition to the petitio n for
review and the appellant replies to the agency’s response. PFR File , Tabs 3 -4.
¶4 The appellant did not respond to the administrative judge’s jurisdictional
order, and there is very little information in the record concerning the factual
basis of her c laim of involuntariness. Her appeal contained her resignation letter,
which reads as follows:
Please accept this letter as notification that I am resigning from my
position . . . . I have been denied Equal Opportunity provisions due
to my disability. I have been subjected to continuous harassment and
a hostile work environment. Also, I have been forced to return to a
stressful/hostile work environment. I have asked management for
help and nothing has been done to assist me. Therefore, I have no
other choice and must resign for personal reasons.
IAF, Tab 1 at 12. In addition, she stated in her appeal that the agency denied her
request for reasonable accommodation and as a result she would have had to
“return to a hostile work environment and a continuo us pattern of harassment,” so
she was forced to resign. Id. at 4.
¶5 A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of showing by preponderant
evidence that her resignation was in voluntary and therefore tantamount to a
forced removal. Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586,
¶ 15 (2009) (citing Garcia v. Department of Homeland Security , 437 F.3d 1322 ,
1329 -30 (Fed. Cir. 2006) ). Absent jurisdiction over the underlying action, the
Board lacks jurisdiction to adjudicate allegations of discrimination. Garcia ,
437 F.3d at 1342 -43. However, it is appropriate to consider the appellant’s
discrimination allegations to the extent they bear on th e question of
involuntariness. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110 ,
¶ 5 (2010) . An appellant may show that her resignation was involuntary by
demonstrating that the agency denied a request for reasonable accommodation.
Williams v. Department of Agriculture , 106 M.S.P.R. 67 7, ¶ 13 (2007) . T o
4
prevail in an intolerable working conditions claim, the appellant must prove that,
under all of the circumstances, working conditions were made so difficult by the
agency that a reasonable person in the employee’s position would have fe lt
compelled to resign. McCray v. Department of the Navy , 80 M.S.P.R. 154 , ¶ 8
(1998 ) (citing Heining v. General Services Administration , 68 M.S.P.R. 513 , 520
(1995) ). The question of voluntariness rests on whether the totality of the
circumstances supports t he conclusion that the appellant was effectively deprived
of free choice in the matter; application of this test must be gauged by an
objective standard rather than by the appellant’s purely subjective evaluation.
McCray , 80 M.S.P.R. 154 , ¶ 8 (citing Heining , at 519 -20).
¶6 According to the memorandum denying the appellant’s request for
reasonable accommodation, her position of recor d is a patient care position and
requires contact with patients. IAF, Tab 1 at 8. The agency previously granted
the appellant’s request to be reassigned to a less stressful working environment
on a temporary basis. Id. This time, the accommodation she requested was to
“remain and continue to work in less stressful work environment as recommended
by physician.” Id. The agency denied her request because the Audiology Clinic’s
ability to serve its patients had declined, the agency needed the appellant to return
to her regular position and perform patient care, and the appellant was under a
Focused Professional Practice Evaluation (FPPE) that she was required to
complete. Id.
¶7 As the administrative judge correctly found, the appellant did not describe
the harassment she alleged to have suffered and she did not explain why she
found her working conditions to be intolerable. IAF, Tab 5, Initial Decision
at 5-6. She submitted no medical documentation concerning her alleged
disability, only her physician’s r ecommendation that she work in a less stressful
environment. Id. She likewise submitted no information explaining why she
could not perform her regular duties and why her request to continue in her
temporary assignment was reasonable. Id. She did not c laim that the agency
5
chose the date of her resignation or otherwise impose d the terms of her
separation. Id. She does not claim that the agency provided any misinformation
upon which she reasonably relied in making her decision. Id. As such, she
offered nothing more than a bare allegation that her r esignation was involuntary.
We find that the administrative judge correctly found that the appellant failed to
make a nonfrivolous allegation of jurisdiction.
¶8 For the first time on review , the appellant alleges that she was required to
work under an FPPE and she implies that the FPPE constituted harassment and
created intolerable working conditions. The appellant does not explain what an
FPPE is, but it is our understanding that an FPPE i s a means of examining
whether a medical professional is competent.4 According to the appellant, her
FPPE meant that she was shadowed by another doctor in all patient -contact
situations. PFR File, Tab 1 at 4. She contends that the agency “question[ed] h er
professional capabilities in the presence of patients,” and that “every minute
aspect of her patient care was scrutinize [sic] beyond reason.” Id. She further
averred that the agency also subjected her medical records and administrative
functions to u nreasonable scrutiny to the extent of previewing the emails she sent.
Id. at 4-5. She alleges that a human resources official “continuously” asked her
when she was leaving the agency and the agency issued a vacancy announcement
to backfill her position. Id. at 5.
¶9 All of this is information that clearly was available to the appellant before
the record closed below. The Board need not consider arguments and evidence
submitted for the first time on review absent a showing of due diligence for the
failure to submit them before the administrative judge. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980); Banks v. Department of the Air Forc e,
4 See, e.g., Department of the Navy, Bureau of Medicine and Surgery, BuMed
Instruction 6010.30 (Mar. 27, 2015), https://www.med.navy.mil/Portals/62/Documents/
BUMED/Directives/Instructions/6010.30.pdf?ver=1lYG_rz6OHX1kbgWzF6sow%3d%3
d (last visited Apr. 5, 2023 ).
6
4 M.S.P.R. 268 , 271 (1980). The appellant has not even attempted to explain
why, despite her due diligence, she was prevented from submitting it in a timely
response to the administrative judge’s jurisdictional order. In addition, we note
that t he appellant was represented by counsel throughout the adjudication of her
appeal . We find that the appellant’s arguments and evidence presented for the
first time on review are not based on evidence previously unavailable despite her
due diligence and do not warrant disturbing the initial decision.
¶10 Even if the Board were to consider the appellant’s new argument and
evidence, they would not warrant reversin g the initial decision. The agency’s
reasons for denying the appellant’s accommodation request, that staffing concerns
prevented it from continuing to allow her to avoid patient care, seem reasonable
on their face. The appellant has offered nothing to re but the agency’s stated
reasons for denying her request, and nothing to explain why her request was
reasonable despite the agency’s staffing problems. Thus, there is no basis to
conclude that the appellant was forced to resign because the agency denied he r
request for reasonable accommodation.
¶11 As to the intolerable working conditions claim, the appellant has provided
very little context for her claim aside from stating that “[t]he manner in which the
FPPE was implemented was completely unreasonable in light of [the appellant’s]
medical condition and professional experience.” PFR File, Tab 1 at 4. Even on
review, however, she does not disclose her medical condition or explain how it
affects her ability to perform her job duties, and her physicians say nothing more
than that she should work in a less stressful assignment. Id. at 7-8. An employee
is not guaranteed a working environment free of stress. Miller v. Department of
Defense , 85 M.S.P.R. 310 , ¶ 32 (2000). Dissatisfaction with work assignments, a
feeling of being unfairly criticized, or difficult or unpleasa nt working conditions
are generally not so intolerable as to compel a reasonable person to resign. Id.
Considering the totality of the circumstances in this appeal, even if the Board
accepted the appellant’s allegations as true and excused her failure to present
7
them below, they would not constitute a nonfrivolous allegation of
involuntariness entitling her to a jurisdictional hearing.
¶12 Accordingly, we find that the administrative judge correctly dismissed the
appeal for lack of jurisdiction.
NOTICE OF APP EAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is mos t
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main pos sible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 appropr iate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses th e services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Pe rry 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 befo re
you do, then you must file with 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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition 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 representation
for Merit Systems Prote ction 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 Pre sident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | KELLEY_YOLANDA_D_AT_0752_17_0093_I_1_FINAL_ORDER_2018498.pdf | 2023-04-05 | null | AT-0752 | NP |
3,314 | https://www.mspb.gov/decisions/nonprecedential/MCGINTY_DANIEL_J_NY_4324_17_0238_I_1_FINAL_ORDER_2018504.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL J. MCGINTY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-4324 -17-0238 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel J. McGinty , Wood Ridge, New Jersey, pro se.
Krista M. Irons , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his claim under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) for lack of jurisdiction and his claim under the Federal Erroneous
Retirement Coverag e Correction Act for failure to state a claim. On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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, the appellant argues that a clerical error resulted in his loss of sick leave
when the agency reinstated , rather than competitively rehired, him af ter a 4 -year
break in service . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretio n, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, se ction 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granti ng 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).
NOTICE OF APP EAL 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 mos t
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise 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 pos sible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses th e services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a c ivil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 receive s this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepaym ent of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCGINTY_DANIEL_J_NY_4324_17_0238_I_1_FINAL_ORDER_2018504.pdf | 2023-04-05 | null | NY-4324 | NP |
3,315 | https://www.mspb.gov/decisions/nonprecedential/LUEVANO_BERTHA_A_DA_0845_17_0369_I_1_FINAL_ORDER_2018507.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BERTHA A. LUEVANO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0845 -17-0369 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bertha A. Luevano , El Paso, Texas, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed as modified the reconsi deration decision of the Office of Personnel
Management (OPM) finding that s he had been overpaid annuity benefits under the
Federal Employees’ Retirement System and that she did not qualify for a waiver
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 collection . The administrative judge adjusted the collection schedule to
5,650 payments of $5 per month and 1 final installment of $3.34. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial de cision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the reco rd
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis unde r section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 On review, the appellant asserts that she did not receive an overpayment
and, if she did, she is due a waiver because of her financial hard ship. Petition for
Review File, Tab 1 at 2-3. For support, she attach es a letter from the Social
Security Administration notifying her that it would begin depositing her benefits
into the new financial account she selected in October 2016 , and a n updated
Financial Resources Questionnaire revealing her economic situation . Id. at 4-8.
These documents were already in the record below. Initial Appeal File, Tab 1
at 7, Tab 11 at 2 -4. We have considered the appellant’s evidence and argument,
and we find no reason to disturb the initial decision.2
2 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from his or her estate or other responsible party. A party responsible
for any debt remaining up on the appellant’s death may include an heir (spouse, child, or
other) who is deriving a benefit from the appellant’s Federal benefits, an heir or other
person acting as the representative of the appellant’s estate if, for example, the
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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 Perso nnel 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 notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegat ions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for th e Federal Circuit or any court of appeals of
competent jurisdiction.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 Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
whist leblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repre sentation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscour ts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LUEVANO_BERTHA_A_DA_0845_17_0369_I_1_FINAL_ORDER_2018507.pdf | 2023-04-05 | null | DA-0845 | NP |
3,316 | https://www.mspb.gov/decisions/nonprecedential/MORTON_HAMLET_DEBORAH_SF_3443_16_0626_I_1_FINAL_ORDER_2018630.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBORAH MORTON -HAMLET,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-3443 -16-0626 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah Morton -Hamlet , Portland, Oregon, pro se.
Michael R. Tita , Esquire, Sandy, Utah, 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 and the agency has filed a cross
petition for review of the initial decision, which dismissed her appeal for lack of
Board jurisdiction . For the reasons discussed below, we DENY the petit ion 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 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
review, GRANT the cross petitio n for review, and AFFIRM the initial decision
AS MODIFIED. Except as expressly MODIFIED by this Final Order to dismiss
several issues in the appeal on collateral estoppel grounds , we AFFIRM the initial
decision.
BACKGROUND
¶2 This appeal arises on grounds id entical to those in the appellant’s prior
Board appeal filed on March 23, 2015. Morton -Hamlet v. U.S. Postal Service ,
MSPB Docket No. SF -3443 -15-0433 -I-1, Initial Decision (June 24, 2015)
(0433 ID).3 The appellant is a preference eligible pursuant to 5 U.S.C.
§ 2108 (3)(E), based on her marriage to a service -connected disabled veteran who
has been unable to qualify for an appointment in the civil service. Id. at 2; Initial
Appeal File (IAF), Ta b 6 at 21. Both appeals originated with the appellant’s
reassignment, effective March 7, 2015, from a position within her medical
restrictions to an unrestricted position. 0433 ID at 2; IAF, Tab 1 at 2, Tab 7
at 4-5, 35.
¶3 In her prior appeal , the appellan t raised several issues related to the
reassignment, which took place after the agency required her to rebid for the
position to which she was assigned “due to operational needs.” 0433 ID at 3.
The appellant refused to bid, and effective March 7, 2015, s he was assigned to the
position of Mail Processing Clerk (Automation). Id. Notably, the appellant has
not worked since that time. IAF, Tab 6 at 6 -7. In her prior appeal, the appellant
alleged that the agency breached a 2007 grievance settlement agreeme nt that
allowed her to work in a position with certain medical restrictions by moving her
into a position without such restrictions. 0433 ID at 2, 4 -5. She also asserted that
the agency improperly calculated the rate of annual leave she was accruing
beca use she did not receive credit for her husband’s military service. Id. at 2,
3 Neither party filed a petition for review in the prior appeal, and the initial decision is
thus the Board’s final decision in that case . 5 C.F.R. § 1201.113 .
3
5-6. She claimed she was subject to a reduction in force when the agency was
unable to accommodate all of her medical restric tions as set forth in her
light -duty request. Id. at 6-7. Finally, she alleged she was subject to a reduction
in pay when she was not accorded “out of schedule” premium pay to compensate
for the change in her duty days after she was reassigned to the new position. Id.
at 7. The administrative judge issued an initial decision that dismissed the appeal
for lack of Board jurisdiction. Id. at 1, 8.
¶4 The current appeal addressed the same issues regarding t he appellant’s
reassignment and her added allegations of illegal discrimination based on
disability . IAF, Tab 6 at 1 -8, Tab 10 at 3 . The appellant argued that, because she
was hired as a preference eligible in a “restricted assignment which was a
position recommended for an individual with [her] disabling condition,” she
should not have been reassigned. IAF, Tab 6 at 1-2. She also argued that she was
not required to request reasonable accommodation after she was reassigned
because the parties understood when she was initially hired that, if she were
reassigned from the restricted position, accommodation s would be necessary. Id.
at 2. Therefore, she argued, the agency’s request that she provide updated
medical documentation and its decision to send her home pending receipt of that
documentation was discriminatory. Id. at 3.
¶5 Because the appellant’s current appeal so strongly resembles her previous
appeal , the administrative judge gave the appellant notice regarding the possible
preclusion of her claims under the doctrines of res judicata and collateral estoppel
and an opportunity in which to respond. IA F, Tab 8. In her response, the
appellant admitted that the instant appeal “is similar in some evidence” to her
previous appeal , but she asserted the matter is still ongoing and she believes the
agency has discriminated against her based on disability . IAF, Tab 10 at 3.
Despite the identicality of facts and issues in the two appeals, the administrative
judge found that neither collateral estoppel nor res judicata precluded the
appellant from bringing the current appeal. IAF, T ab 12, Initial Decision (ID)
4
at 3. The administrative judge found that collateral estoppel did not apply
because the appellant was unrepresented in the previous appeal . ID at 4. Because
the previous appeal was decided on jurisdictional grounds, the administrative
judge found, the doctrine of res judicata did not apply. Id. The administrative
judge nevertheless concluded that the appellant had not alleged any matter within
the Board’s jurisdiction. ID at 5-7. S pecifically, s he found that the appellant’s
reassignment claim did no t fall within the B oard’s jurisdiction. ID at 5. She
further found that the appellant had made nothing more than bare allegations to
support her contention that her status as a preference eligible or her right to
reasonable accommodation would have requi red the agency to exempt her from
the bidding process in which she refused to participate. ID at 6 -7. To the extent
the appellant was seeking to raise a discrimination claim based on her medical
disability or any other protected factor, the administrativ e judge found that she
had raised no independent basis for the Board’s jurisdiction to attach. ID at 7.
The administrative judge thus dismissed the appeal for lack of jurisdiction. ID
at 8. Because she found that the Board lack s jurisdiction over the a ppeal , she did
not address the issues the agency had raised related to the timeliness of the
appeal. ID at 7 -8. The appellant has filed a petition for review. Peti tion for
Review (PFR) File, Tab 1. The agency has filed a cross petition for review. PFR
File, Tab 3.
ANALYSIS
¶6 On review, the appellant articulates several reasons why she believes the
initial decision is incorrect and the Board has jurisdiction over her appeal . PFR
File, Tab 1 at 5-30. We have considered these arguments and, because they are
without merit as we explain herein , we deny her petition for review. In the cross
petition for review, the agency asks the Board t o dismiss the appeal on grounds
related to judicial efficiency . PFR File, Tab 3 at 4 -5. Because Board precedent
5
supports the agency’s request , we modify the initial decision to find that the
appellant’s primary jurisdictional arguments are barred by collateral estoppel.
¶7 In McNeil v. Department of Defense , 100 M.S.P.R. 146 (2005), the Board
clarified its longstanding four-part test for collateral estoppel . The Board held
that collateral estoppel, or issue preclusion , was appropriate when (1) t he issue is
identical to th at involved in the prior action, (2) the issue was actuall y litigated in
the prior action, (3) the determination on the issue in the prior action was
necess ary to the resulting judg ment, 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. Id., ¶ 15. The first three elements are
clearly met in this case. Contrary to the administrative judge’s finding in the
initial decision regarding the fourth element , ID at 3-4, the Board in McNeil
explained that the matter of representation is ordinarily at issue only when an
individual who was not a party to the earlier proceeding contests an issue that was
decided in that proceeding, McNeil , 100 M.S.P.R. 146, ¶ 14. Here, the appellant
was a party to the earlier proceeding , where she had a full and fair opportunity to
litigate the issue of Board jurisdiction. Accordingly, all alleged bases for
jurisdiction that the ap pellant reasserted from her prior appeal are barred by
collateral estoppel , even though she did not have an attorney or other
representative in the earlier action . 0433 ID at 4 -7; see McNeil , 100 M.S.P.R.
146, ¶¶ 14-15.
¶8 The appellant also argue d that the Board has jurisdiction over her appeal
because, in requiring her to participate in its annual in -section bidding process,
the agency failed to accommodate her disability. IAF, Tab 6 at 1 -8, Tab 10 at 3.
She reasserts this argument on review. PFR File, Tab 1 at 7 -8, 10 -18, 21 -30. By
reassigning her to a nonrestricted position in March 2015, she argues, the agency
6
sought “to further incapacitate” her.4 Id. at 7. She includes with her petition for
review the content of letters from medical prov iders, medical assessments from
2007 and 2015, and copies of agency regulations on medical issues.5 Id. at 14 -16,
22-28, 31 -39. However, t he Board cannot review a discrimination claim raised in
an appeal when it lacks jurisdiction over the underlying act ion. Saunders v. Merit
Systems Protection Board , 757 F.2d 1288 , 1290 (Fed. Cir. 1985); Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d , 681 F.2d 867 , 871 -73
(D.C. Cir. 1982). Her argument is thus unavailing.
¶9 Finally, t he appellant argues that the administrative judge should have
recused herself and the agency representative should have been disqualified
because they were involved in her prior appeal, which was dismissed for lack of
jurisdiction.6 PFR File, Tab 1 at 8. The appellant has not identified any basis for
taking such actions. Neither the fact that the administrative judge was assigned
to the appellant’s other appeal, nor the fact that she made rulings with whi ch the
4 The appellant similarly asserted that she refused to continue in the reass igned position
and so she “EXERCISED [HER] OSHA RIGHT AND REFUSED TO FURTHER DO
UNDUE HARM TO [HERSELF].” IAF, Tab 6 at 6 (all capitals in original) ; see PFR
File, Tab 1 at 13 (asserting the same argument). The appellant has not shown, however,
that Federal occupational safety and health laws provide any basis for the Boar d’s
jurisdiction .
5 To the extent these documents were submitted for the first time on review, the Board
will not consider them because they predate the close of the record below, and the
appellant has not explained why they were unavailable before the record closed.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (holding that the Board
generally will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed despi te the
party’s due diligence). Because the Board lacks jurisd iction over the appellant’s claim
of disability discrimination, t hese documents also fail to meet the Board’s requirement
that new evidence must be of sufficient weight to warrant an outcome different from
that of the initial decision . See Russo v. Vetera ns Administration , 3 M.S.P.R. 345 , 349
(1980) .
6 The appellant actually states that the Board’s administrative judge also was the
administrative judg e in her equal employment opportunity case. PFR File, Tab 1 at 8.
We believe she likely meant that the same administrative judge presided in both of her
Board appeals.
7
appellant disagrees , overcomes the presumption of honesty and integrity due to
administrative judges, and the appellant has identified no conduct or comments by
the administrative judge that evidence a deep -seated favoritism or antagonism.
See Cara cciolo v. Department of the Treasury , 105 M.S.P.R. 663 , ¶ 14 (2007)
(holding that the mere fact that the administrative judge made rulings with which
the appellant disagrees does not support a recusal) (citing Oliver v. Department of
Transportation , 1 M.S.P.R. 382 , 386 (1980) , and Bieber v. Department of the
Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) ), overruled on other grounds by
Brookins v. Department of the Interi or, 2023 MSPB 3 . As for disqualifying the
agency representative, a party seeking to disqualify the other party’s
representative bea rs the burden of showing that the representative has a conflict
of interest or conflict of position. Metzenbaum v. General Services
Administration , 83 M.S.P.R. 243 , ¶ 3 n.1 (1999); 5 C.F.R. § 1201.31 (b). The
appellant has not made such a showing, and we thus find her arguments
unavailing.
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 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
7 Since the issuance of the initial decision in this matter, the Board may have update d
the notice 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 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
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repre sentative 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 to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.8 The court of appeals must receive your
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.
11
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MORTON_HAMLET_DEBORAH_SF_3443_16_0626_I_1_FINAL_ORDER_2018630.pdf | 2023-04-05 | null | SF-3443 | NP |
3,317 | https://www.mspb.gov/decisions/nonprecedential/JAMES_CAROLYN_E_AT_0831_16_0542_I_2_FINAL_ORDER_2018662.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAROLYN E. JAMES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -16-0542 -I-2
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carolyn E. James , Jacksonville, Florida, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) finding that she was not entitled to an increased survivor annuity.
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 decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Effective October 1, 1987, the appellant’s late hus band began receiving a
disability retirement annuity under the Civil Service Retirement System (CSRS).
James v. Office of Personnel Management , MSPB Docket No. AT-0831 -16-0542 -
I-1, Initial Appeal File (IAF), Tab 6 at 30-32, 41 -48. He later elected to rec eive
Office of Workers’ Compensation Programs benefits in lieu of a CSRS disability
retirement annuity. Id. at 14, 49 -55. Following his death in 2014, the appellant
applied for a survivor annuity under CSRS. Id. at 17-22. In a December 22, 2015
initial decision, OPM notified the appellant that she was entitled to a monthly
survivor annuity in the amount of $1,002. Id. at 13-15. The appellant requested
3
reconsideration, and, in a May 4, 2016 reconsideration decision, OPM informed
her that its calculatio n was correct and affirmed the initial decision. Id. at 6-7.
¶3 The appellant appealed OPM’s reconsideration decision to the Board,
arguing that OPM’s calculation was incorrect. IAF, Tab 1. Upon the appellant’s
request, the administrative judge dismissed t he appeal without prejudice to
refiling. IAF, Tab 12. The appellant subsequently requested to refile the appeal,
arguing again that OPM erred in calculating her survivor annuity. James v. Office
of Personnel Management , MSPB Docket No. AT-0831 -16-0542 -I-2, Refiled
Appeal File (RAF), Tab 1. In an initial decision, the administrative judge found
that the appellant failed to show that OPM erred in calculating her survivor
annuity and affirmed OPM’s reconsideration decision. RAF, Tab 10, Initial
Decision ( ID).
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 4.
¶5 An appellant bears the burden of proving her entitlement to retirement
benefits by prepond erant evidence. See Cheeseman v. Office of Personnel
Management , 791 F.2d 138 , 140 -41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56 (b)(2)(ii). A preponderance of the evidence is that degree of relevant
evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than
untrue. 5 C.F.R. § 1201.4 (q).
¶6 A disability annuitant under CSRS is entitled to an annuity of at least the
smaller of the following two amounts: (1) 40% of his average pay; or (2) the
amount obtained from the general formula for computing a basic annuity after
increasing the annuitant’ s service by the time between the date of his separation
and the date he becomes 60 years of age. 5 U.S.C. § 8339 (g). “Average pay”
mean s the highest average rate of basic pay in effect over any 3 consecutive years
of creditable service . 5 U.S.C. § 8331 (4). When, as here, the CSRS retiree does
not elect not to provide a survivor annuity or to provide only a partial survivor
4
annuity, the surviving spouse is entitled to a survi vor annuity in the amount of
55% of the retiree’s annuity. 5 U.S.C. §§ 8339 (j)(1), 8341(b)(1); Cerilli v. Office
of Personnel Management , 119 M.S.P.R. 404 , ¶ 5 (2013); 5 C.F.R. § 831.614 ;
IAF, Tab 6 at 41.
¶7 Relying on the appellant’s late husband’s Individual Retirement Record
from the Department of the Navy, OPM determined that he had the highest
average pay rate for the 3 -year period between December 1983 and
December 1986 . IAF, Tab 6 at 29 -32. Because his pay vari ed within each of
these years, OPM calculated his average salary over the course of this period by
determining the number of days he worked at each pay rate, dividing the number
of days by 360,3 multiplying that factor by his respective pay rate for that p eriod,
adding those results together, and dividing the sum by 3 years. Id. Thus, OPM
determined that the appellant’s late husband’s “high -3” average salary was
$30,777 per year. Id. at 13, 29 -32. OPM noted that 40% of the high -3 average
salary was $12, 310.80 and that the general formula, increased by the number of
years between the appellant’s late husband’s separation and his 60th birthday,
yielded an annual base of $11,310.53. Id. at 13. Relying on the lower amount
pursuant to section 8339(g) , OPM concluded that the appellant’s late husband’s
annual disability retirement annuity, before any reduction for a survivor annuity,
would have been $11,310.53. Id. OPM further explained, however, that her
husband did not make a deposit for his post -1956 military service and, therefore,
the credit for that period of service had to be eliminated. Id. After eliminating
credit for his post -1956 military service, OPM determined that he would have
been entitled to a base annual disability retirement annuit y in the amount of
$10,387.25.4 Id. OPM thus found that the appellant was entitled to a base
3 For retirement computation purposes, a year consists of 360 days, i .e., 12 months of
30 days. CSRS/Federal Employees Retirement System Handbook, § 50A2.1 -3(B).
4 Absent a deposit, all military service performed after December 1956 is excluded from
civilian service credit once an employee becomes eligible for Social Secur ity old -age
5
survivor annuity in an amount equal to 55% of $10,387.25, which is $5,712.98
per year or $476 per month. Id. After applying the cost of living increases
throug h December 2015, OPM determined that the appellant was entitled to a
monthly survivor annuity in the amount of $1,002. Id.
¶8 On review, the appellant argues that her husband was eligible to receive an
annual disability retirement annuity in the amount of $11,772.19 on the date of
his retirement and that, by the date of his death in 2014, he would have been
receiving an annual annuity in the amount of $24,945.43. PFR File, Tab 1 at 3.
She therefore argues that she is entitled to a survivor annuity equal t o 55% of this
amount, i.e., $13,719.96 per year or $1,143.33 per month. Id.
¶9 We have reviewed OPM’s calculation of the appellant’s late husband’s
high -3 average salary based on his Individual Retirement Record and its
calculation of the guaranteed minimu m annuity pursuant to section 8339(g) and
find, as did the administrative judge, that these calculations are correct. ID at 3.
We have further reviewed OPM’s calculation of the appellant’s survivor annuity,
i.e., 55% of $10,387.25 per year with cost of l iving adjustments through
December 2015, and find, as did the administrative judge, that these calculations
are likewise correct. ID at 4. Although the appellant disagrees with OPM’s
calculation of her survivor annuity and has provided on review a specif ic amount
that she believes is correct, she has not identified any specific error in OPM’s
calculations or provided any evidence showing that OPM utilized incorrect rates
of pay or dates in its calculations. PFR File, Tab 1. Therefore, we find that the
administrative judge correctly concluded that the appellant has not demonstrated
that OPM erred in calculating her survivor annuity and agree that OPM’s
reconsideration decision must be affirmed. ID at 4.
benefits. 5 U.S.C. 8332 (j)(1); Hooten v. Office of Personnel Management ,
114 M.S.P.R. 205 , ¶ 6 (2010). Here, the appellant’s late husband performed
approximately 18 months of military service after December 1956, from January 1,
1957 , to June 20, 1958. IAF, Tab 6 at 47. There is no indication, however, that he
made a service deposit for this period of service. Id. at 14, 19; ID at 2.
6
NOTICE OF APPEAL RIG HTS5
You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and t he rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and car efully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the 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:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable t o the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. dis trict court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 represe ntation 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 respective
websites, wh ich can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Com mission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calenda r days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commissio n
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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
9
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decisi on.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following 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 Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All 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.
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 | JAMES_CAROLYN_E_AT_0831_16_0542_I_2_FINAL_ORDER_2018662.pdf | 2023-04-05 | null | AT-0831 | NP |
3,318 | https://www.mspb.gov/decisions/nonprecedential/HUFFMAN_DIRK_A_DC_0752_14_0047_I_1_FINAL_ORDER_2018672.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIRK A. HUFFMAN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER S
DC-0752 -14-0047 -I-1
DC-0752 -15-0714 -I-1
DATE: April 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dirk A. Huffman , Hampton, Virginia, pro se.
Patricia Reddy -Parkinson , Esquire, Sandra E. Dickerson , Esquire, and
Daniel Fevrin , Esquire, Norfolk, Virginia, 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 of the initial decision in these
two jo ined appeals, which found that t he agency rescinded his indefinite
suspension, concluded that he failed to prove his affirmative defenses , and
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
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpre tation 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
Feder al Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in th ese appeal s, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify why the appellant’s affirmative defenses to his indefinite suspension are
unavailing , we AFFIRM the initial decision.
BACKGROUND
¶2 This matter involves an indefinite suspension appeal, Huffman v.
Department of the Navy , MSPB Docket No. DC -0752 -14-0047 -I-1, Initial Appeal
File (0047 IAF), Tab 1, and a removal appeal, Huffman v. Department of the
Navy , MSPB Docket No. DC -0752 -15-0714 -I-1, Initial Appeal File (0714 IAF),
Tab 1. The administrative judge joined them after the close of record in each and
issued a single initial decision. 0047 IAF, Tab 25; 0714 IAF, Tab 44.
¶3 The appellant most recently held an Information Technology Specialist
position at the Ship Liaison Unit of the agency’s Military Sealift Command.
0714 IAF, Tab 5 at 21, 39. The position required that he maintain a security
clearance. 0714 IAF, Tab 5 at 72, Tab 6 at 18. In March 2013, the appellant
reported a breach of personally identifiable information (PII) pertaining to a large
number of agency employees. 0047 IAF, Tab 4 at 83 -85. In doing so, he first
sent a message to the agency’s Chief Information Officer from his personal email
3
account with a link to the compromised PII. Id. at 83, 85 -86. He subsequently
forwarded the link to compromised PII to 17 Ship’s Communications Officers
from his official email account . Id. at 84. As a result, the agency suspended his
access to classified information and are as whe re it was maintained because
he failed to follow proper protocol for handling both the PII itself and the PII
breach. Id. at 166, 171. Based on this access suspension, the agency also
imposed an indefinite suspension from service. Id. at 80-82, 15 8-62.
¶4 In October 2013, the appellant timely appealed his indefinite suspension.
0047 IAF, Tab 1. Although the agency later cancelled the indefinite suspension,2
the administrative judge allowed the appeal to proceed for adjudication of the
appellant’s af firmative defenses of whistleblower reprisal and retaliation for
engaging in protected equal employment opportunity (EEO) activity. 0047 IAF,
Tab 12 at 2 -3, Tab 15 at 16 -17, Tab 18; 0714 IAF, Tab 45, Initial Decision (ID)
at 3, 5-11. While that matter wa s pending, the agency removed the appellant for
conduct unbecoming a Federal employee based on the same incidents underlying
the suspension of his access to classified information. 0047 IAF, Tab 4 at 80;
0714 IAF, Tab 5 at 22 -26, 39 -42.
¶5 After the appell ant timely appealed his removal, the agency propounded
discovery requests to the appellant in the removal appeal, to which he failed to
respond. 0714 IAF, Tab 1, Tab 12 at 7 -25. The agency then filed a motion to
2 The agency indicated that it cancelled the indefinite suspension “in an abundance of
caution” following the Board’s decisions, as relevant here, in Ulep v. Department of the
Army , 120 M.S.P.R. 579 (2014) , and Schnedar v. Department of the Air Force ,
120 M.S.P.R. 516 (2014) . 0047 IAF, Tab 15 at 4. In each of those decision s, the Board
found harmful error caused by the agencies’ failure to comply with Department of
Defense procedures when indefinitely suspe nding the employees involved based on the
suspension or revocation of their security clearances; thus, the Board reversed the
indefinite suspensions. Ulep , 120 M.S.P.R. 579 , ¶¶ 4‑6; Schnedar , 120 M.S.P.R. 516 ,
¶¶ 3, 8-12. However, the Board later clarified in Rogers v. Department of Defense ,
122 M.S.P.R. 671 , ¶¶ 7‑13 (2015 ), that the procedures at issue in Ulep and Schnedar
are not required for indefinite suspensions based on interim access suspensions pending
final adjudication of an employee’s security clearance, such as the indefinite su spension
here. 0047 IAF, Tab 4 at 80 -81.
4
compel. 0714 IAF, Tab 12 at 4 -6, Tab 15. After the administrative judge granted
the agency’s motion to compel, the appellant provided both initial and
supplemental responses. 0714 IAF, Tab 16 at 1, Tab 17 at 28-37, Tab 19 at 6 -13.
The agency moved to dismiss the appeal, arguing that the respon ses were
deficient. 0714 IAF, Tab 17 at 4-8, 28 -37, Tab 19 at 4 -13, 16 -19. While that
motion was pending, the agency filed a second motion to dismiss after the
appellant failed to appear at his deposition. 0714 IAF, Tab 21 at 4 -8, 19 -23,
27-33. After t he appellant responded to the agency’s motions, the administrative
judge declined to dismiss the removal appeal but sanctioned the appellant by
prohibiting him from testifying at the hearing or offering information that would
have been responsive to the ag ency’s discovery requests. 0714 IAF, Tab 23
at 4-5.
¶6 The appellant waived his right to a hearing , and the administrative judge
issued a decision on the written record. 0047 IA F, Tab 11; 0714 IAF, Tab 36;
ID at 4. Concerning the indefinite suspension appeal, she found that the agency
fully rescinded the adverse action. ID at 4 -5. She also found th at the
appellant failed to prove his EEO and whistleblower reprisal affirmative defenses.
ID at 5-11. Concerning the removal appeal, the administrative ju dge found that
the agency met its burden of proving the charge, nexus, and reasonableness of the
penalty. ID at 11 -14, 18 -19. She also found that the appellant failed to meet his
burden of proving his affirmative defenses. ID at 14 -18. The appellant ha s filed
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 5 -6.
ANALYSIS
MSPB Docket No. DC -0752 -14-0047 -I-1: Indefinite Suspension Appeal
¶7 As previously mentioned , the agency presented argument and evidence that
it cancelled the appellant’s indefinite suspension during the adjudication of his
appeal. 0047 IAF, Tab 15. The administrative judge found that the agency’s
5
actions amounted to a full rescission ; therefor e, she did not need to adjudicate the
merits of the indefinite suspension except to the extent necessary to address the
appellant’s affirmative defenses . ID at 4. The appellant does not dispute that
finding on review , and we discern no basis for reaching a different conclusion.3
¶8 The administrative judge next found that the indefinite suspension appeal
was not moot because the appellant had raised claims of reprisal for EEO and
whistleblowing activity that, if proven, could result in damages. Id. On review,
the appellant has alluded to these affirmative defenses. PFR File, Tab 1 at 5 -7.
For the reasons that follow, we modify the administrative judge’s analysis of
these affirmative defenses while still finding the m unproven.
¶9 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); Palafox v.
Departmen t of the Navy , 124 M.S.P.R. 54 , ¶ 8 (2016). An agency may
indefinitely suspend an appellant when his access to classified infor mation has
been suspended and he needs such access to perform his job. Palafox ,
124 M.S.P.R. 54 , ¶ 8. In such a case, the Boar d has the authority to review
whether: (1) the appellant’s position required access to classified information;
(2) the appellant’s access to classified information was suspended; and (3) the
appellant was provided with the procedural protections specified in 5 U.S.C.
§ 7513 . Id. In addition, the Board has the authority under 5 U.S.C.
3 On petition for review, the appellant appears to assert that the agency committed
harmful error by relying on “Privacy Act information” to indefinitely suspend him,
allegedly in violation of agency policy. PFR F ile, Tab 1 at 4 -5, 11. This appears to be
a new argument but may be related to his argument below that the agency violated the
Privacy Act by placing him on administrative leave and indefinitely suspending him
without questioning him first. 0047 IAF, Tab 8 at 6 -7. The administrative judge
addressed this claim in connection with the appellant’s removal appeal, finding no
procedural error because the Privacy Act does not concern how an agency investigates
an allegation of employee wrongdoing. ID at 16 -17. We agree. The Privacy Act
concerns maintenance and disclosure of, and access to, Federal agency records about an
individual that contain an “identifying particular assigned to the individual.” 5 U.S.C.
§ 552a . It does not address how an agency conducts disciplinary investigations.
6
§ 7701 (c)(2)(A) to review whether the agency provided t he procedural protections
required under its own regulations. Id. Because a tenured Federal employee has
a property interest in continued employment, the Board also may consider
whether the agency provided minimum due process in taking the indefinite
suspension action. Id.
¶10 Although the Board has the authority described above, it lacks the authority
to review the merits of an agency’s decision to suspend access to classified
information. Id. Therefore, the Board is precluded from reviewing allegations of
prohibited discrimination and EEO and whistleblower reprisal when such
affirmative defenses relate to a security clearance determination. See Grimes v.
Department of Justice , 122 M.S.P.R. 36 , ¶¶ 8, 15 (2014) (finding that an
administrative judge appropriately declined to adjudicate the appellant’s
whistleblowe r reprisal claim in connection with a security clearance -based
removal because such a claim went to the merits of the agency’s underlying basis
for finding the appellant ineligible to access noncritical sensitive information);
Putnam v. Department of Homel and Security , 121 M.S.P.R. 532 , ¶¶ 18-19 (2014)
(finding that the Board cannot review an appellant’s disability discrimination
claim in connection with a security clearance -based indefinite suspension). That
is because analysis of discrimination and reprisal claims in such cases would
require the Board to assess the validity of the agency’s reason for taking the
challenged action, i .e., the validity of the security clearance determination.
Grimes , 122 M.S.P.R. 36 , ¶ 15; Putnam , 121 M.S.P.R. 532 , ¶ 18.
¶11 However, the Board has held open the possibility of a viable affirmative
defense that is brought in such a way that it would no t require the Board to
review the substance of the underlying security clearance determination, e.g., a
defense that solely goes to the issue of penalty and is based on the agency’s
treatment of similarly situated individuals outside of the appellant’s pro tected
class . Helms v. Department of the Army , 114 M.S.P.R. 447 , ¶ 9 n.* (2010).
Relying on Helms , the administrative judge in this case appropriately addressed
7
the appellant’s EEO and whistleblower reprisal affirmative defenses to determine
whether his indefinite suspension was tainted by EEO or whistleblower reprisal .
ID at 4 n.3, 5.
We discern no basis to disturb the administrative judge’s determination
that the appellant failed to prove EEO reprisal but modify her reasoning to
apply the correct standard .
¶12 For the appellant’s EEO reprisal claim, the administrative judge recognized
that the deciding official was aware of the appellant’s EEO activity, but she found
that the appellant failed to prove a “genuine nexus ” between his EEO activity and
his indefinite suspension. ID at 5-7. In reaching this conclusion, the
administrative judge relied on the standard set out in Warren v. Department of the
Army , 804 F.2d 654 , 656-58 (Fed. Cir. 1986) . The Warren standard applies to
alleged retaliation for “the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation” in which an appellant did not allege EEO
discrimination or retaliation, or seek to remedy whistleblower reprisal . Pridgen
v. Office of Management and Budget , 2022 MSPB 31 , ¶ 32. The use of this
standard was in error, because the appellant raised a claim of retaliation for
engaging in EEO activity . Id. We therefore modify the decision to apply the
correct standard.
¶13 An appellant may prove an affirma tive defense of retaliation for Title VII
activity by showing that his protected activity was a motivating factor, i.e.,
played any part in the agency ’s action. Id., ¶¶ 20-22. The agency may then assert
a defense that it would have taken the same action anyway, and in that instance
the appellant’s relief may be limited. 42 U.S.C. § 2000e -5(g)(2)(B) ; Desert
Palace , Inc. v. Costa , 539 U.S. 90 , 94-95 (2003) . For the appellant to obtain the
full measure of relief under the statute , including damages, his protected activity
must have been “a but -for cause ” of the action. Pridgen , 2022 MSPB 31 , ¶ 22
(citation omitted) . The appellant may meet this burden by submitting any
combination of direct or indirect evidence, including (a) evidence of “suspicious
8
timing, ambiguous statements oral o r written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn,” also known as
“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether
or not rigorously statistical, that employees similarly situated to the plaintiff
other than in the characteristic . . . on which an employer is forbidden to base a
difference in treatment received systematically better treatment ”; or (c) evidence
that the agency’ s stated reason for its action is “unworthy of belief, a mere
pretext for discrimination .” Id., ¶¶ 23-24 (citations omitted ). The motivating
factor standard does not apply to a claim of retaliation for activity protected
under the Americans with Disabilities Act . See id. , ¶ 47 (rejecting the use of a
mixed -motive standard for such claims). Instead, an appellant must prove that
retaliation was a “but-for” cause of the agency’s action . Id., ¶¶ 4 4-47.
¶14 Here, the administrative judge cited the Warren standard . However,
she also explicitly reasoned that the appellant failed to explain what his EEO
activity was about, much less how it might have “motivated ” relevant parties to
retaliate against him. ID at 6 -7. The administrative judge further credited the
deciding official because he provided sworn testimony that the EEO activity
played no role in the appellant’s indefinite suspension and that an indefinite
suspension from service was the agency’s usual response to any employee’s
security clearance suspension . ID at 7. We discern no basis for disturbing these
findings of fact or reaching a different conclusion. Because t he appellant
failed to prove that his EEO activity was a moti vating factor in his
indefinite suspension, we do not reach the question of whether his EEO activity
was a “but-for” cause of the suspension.
¶15 Although the appellant has alluded to his EEO reprisal claim on review, his
argument is little more than a misunderstanding of the administrative ju dge’s
findings. According to the administrative judge, the deciding official knew of the
appellant’s EEO activity, ID at 6, but there was no evidence that the proposing
9
official or anyone else involved in the indefinite suspension knew of his EEO
activity , ID at 6 n.4. The appellant mistakenly reads those two finding in
isolation to assert that they are contradictory . PFR File, Tab 1 at 5 -6. Read
together, the administrative judge distinguished between those who knew, i.e., the
deciding official, and th ose who did not, i.e., everyone else. Accordingly, the
appellant’s argument is unavailing.
The administrative judge properly found that the agency proved by clear
and convincing evidence that it would have suspended the appellant absent
his whistleblowing .
¶16 When whistleblower retaliation claim s are made in the context of
an otherwise appealable action, as here, the appellant must prove by preponderant
evidence that he made a protected disclosure or engaged in protected activity and
that the disclosure or ac tivity was a contributing factor i n the personnel action at
issue . See Pridgen , 2022 MSPB 31 , ¶ 49 . If he does so, the burden of persuasion
shifts to the agency to show by clear and convincing evidence that it would have
taken the same personnel action absent the protected disclosure or activity . Id.
In determining whether an agency has met this burden , the Board will consider
the following factors: (1) the strength of the agency’ s evidence in support of its
action; (2) the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and (3) any evidence that the
agen cy takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999).
¶17 The administrative judge applied this standard to find that the appellant
presented a prima facie case of reprisal regarding his March 2013 disclosures
about PII and the indefinite suspension from service that followed, ID at 8 -9, but
the agency proved that it would have taken the same indefinite suspension in the
absence of those disclosures, ID at 9 -11. She reasoned that the evidence in
support of the indefinite suspension was very strong because the appella nt’s
10
access to classified information was indisputably suspended ; the relevant parties
had only a slight motive to retaliate ; and there was strong evidence of the agency
taking similar actions against similarly situated nonwhistleblowers. Id.
¶18 Although th e administrative judge otherwise analyzed this claim correctly,
she included a footnote suggesting that the agency’s decision to suspend the
appellant’s access to classified information was due to his disclosure of PII.
ID at 9 n.10. We vacate this findi ng. It was not necessary to the administrative
judge’s analysis of the appellant’s whistleblower reprisal claim , and it improperly
veered into the merits of the security clearance determination, which is beyond
the scope of Board review. Supra ¶¶ 10-11.
¶19 For the same reason, the appellant’s only argument on review about this
affirmative defense is unavailing. The appellant has alluded to his whistleblower
reprisal claim , but only to argue that his disclosures did not contain PII .
PFR File, Tab 1 at 7. Yet that argument suggest s that we should look at the
strength of the evidence in support of his security clearance suspension, rather
than the strength of the evidence in support of his indefinite suspension from
service (which was based on the suspended security clearance but was not based
on the disclosure of PII), which we cannot do for purposes of the appellant’s
affirmative defense in his indefinite suspension appeal . Supra ¶¶ 10-11.
MSPB Docket No. DC -0752 -15-0714 -I-1: Removal A ppeal
The administr ative judge properly sanctioned the appellant.
¶20 On July 31, 2015, the agency filed a motion to compel in the appellant’s
removal appeal, with argument and evidence that he had not responded to its
interrogatories, requests for documents, or requests for adm issions, despite the
agency’s good faith efforts to communicate with him regarding his failure to
respond. 0714 IAF, Tab 12 at 4 -25; see 5 C.F.R. § 1201.73 (c)(1) (requiring a
party to first attempt to resolve any discovery disputes before filing a motion to
compel). On August 27, 2015, the agency re quested a ruling on that
11
motion because the appellant still had not responded to its discovery requests.
0714 IAF, Tab 15 at 4.
¶21 The administrative judge granted the agency’s motion to compel on
September 16, 2015, instructing the appellant to immediately respond to the
discovery requests and warning that he could be subject to sanctions if he did not
comply. 0714 IAF , Tab 16 at 1. On October 6, 2015, the agency moved to
dismiss the appeal as a sanction, with argument and evidence that, although the
appellant did submit something, his discovery submission was deficient and
nonresponsive. 0714 IAF, Tab 17. For exampl e, in response to interrogatories
asking that he specify the basis of his unexplained prohibited personnel practice
and harmful error claims, the appellant asserted that “it is not the job of the
[a]ppellant to conduct legal research for another party.” Id. at 29. As another
example, he declined to explain his claim for damages or provide supporting
evidence because he had not yet “formulated” his request. Id. at 30. Days later,
the appellant submitted additional responses, which the agency filed to
supplement its motion to dismiss.4 0714 IAF, Tab 19.
4 On review, the appellant acknowledges that the agency supplied the additional
discovery responses to supplement its motion to dismiss but argues that the agency was
not “candid and forthright” concerning his purported cooperation to resolve their
discovery dispute. PFR File, Tab 1 at 8. However, he has failed to provide any
substantive explanation for this assertion. He had the opportunity to raise the agency’s
alleged impropriety below but did not do so. Compare 0714 IAF, Tab 17 (the agency’s
initial motion to dismiss), Tab 19 (the agency’s supplemental motion to dismiss), and
Tab 21 (the agency’s second motion to dismiss), with 0714 IAF, Tab 18 (the appellant’s
response to the agency’s initial motion to dismiss), Tab 20 (the appellant’s response to
the agency’s supplemental motion to dismiss), and Tab 22 (the appellant’s response to
the agency’s second motion to dismiss); see Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 (1980) (explaining that the Board generally will not consider an
argument raised for the first time in a petition for review ab sent a showing that it is
based on new and material evidence not previously available despite the party’s due
diligence). Further, the evidence in the record does not support the appellant’s claims
that he was cooperative in resolving the discovery disput e. E.g., 0714 IAF, Tab 22
at 24‑27 (reflecting the agency’s efforts to obtain the appellant’s responses to its
written discovery).
12
¶22 On October 29, 2015, before the administrative judge ruled on the initial
motion to dismiss, the agency filed another motion to dismiss, asserting that the
appellant also failed to appear for his deposit ion the day before. 0714 IAF,
Tab 21 at 4 -5. The agency presented argument and evidence that after the
appellant ignored its request for his availability, it unilaterally scheduled his
deposition. Id. at 19 -23. The appellant did not respond to the
agen cy’s deposition notice or appear for his deposition on the scheduled date.
Id. at 20, 27 -33.
¶23 The administrative judge denied the agency’s motions to dismiss but
sanctioned the appellant by precluding him from testifying or from submitting
evidence that wa s the subject of the September 16, 2015 order granting the
agency’s motion to compel. 0714 IAF, Tab 23 at 1. As a result, the
administrative judge did not consider several of the appellant’s prehearing
exhibits. ID at 11 -12 (referencing 0714 IAF, Tab 26 at 7-23).
¶24 Administrative judges may impose sanctions upon the parties as necessary
to serve the ends of justice. 5 C.F.R. § 1201.43 . When a party fails to comply
with an order, the a dministrative judge may “[p]rohibit the party failing to
comply with the order from introducing evidence concerning the information
sought, or from otherwise relying upon testimony related to that information.”
5 C.F.R. § 1201.43 (a)(2). The imposition of sanctions is a matter within the
administrative judge’s sound discretion, and absent a showing that such discretion
has been abused, the administrative judge’s determination will not be found to
constitute reversible error. Smets v. Department of the Navy , 117 M.S.P.R. 164 ,
¶ 11 (2011), aff’d per curiam , 498 F. App’ x 1 (Fed. Cir. 2012).
¶25 On review, the appellant argues that it was improper for the administrative
judge to impose sanctions because he resolved the discovery dispute as reflected
in “pleading 2015051490,” which he describes a s missing from the record.
PFR File, Tab 1 at 4, 6 -9. The appellant made a similar assertion below,
indicating that “pleading number 2015053506” responded to the agency’s
13
discovery requests but was removed from e -Appeal Online . 0714 IAF, Tab 18 at
4-5. We are not persuaded.
¶26 Alth ough the appellant suggests that his pleadings are missing from
e-Appeal Online, the Board’s electronic filing system, it appears that they were
simply rejected because he mistakenly filed them with the Board. Compare 0714
IAF, Tab 3 at 2 -3 (instructing t he parties that discovery responses should not be
filed with the Board and indicating that, if they are filed with the Board, they will
be rejected, and referencing 5 C.F.R. § 1201.71 , wh ich provides for filing
discovery requests and responses with the Board only in connection with a motion
to compel), with 0714 IAF, Tab 18 at 4 -5 (the appellant’s assertion that he
uploaded compelled discovery to e -Appeal Online and the pleading was
remove d). Some, if not all, of the corresponding documents were attached to the
agency’s motion for sanctions. 0714 IAF, Tab 17 at 28 -37, Tab 19 at 6 -19. As
previously discussed, those documents demonstrate that the appellant failed to
provide substantive res ponses to many of the agency’s discovery requests.
¶27 Under the circumstances described above, we find no abuse of discretion in
the administrative judge’s imposition of sanctions.5 See, e.g ., Smets ,
117 M.S.P.R. 164 , ¶¶ 5, 11 -12 (finding no abuse of discretion when
an administrative judge prohibited the appellant from submitting ad ditional
evidence on an affirmative defense because she failed to comply with an order to
appear for her deposition). Therefore, we will not consider the excluded evidence
or the appellant’s reassertion of his harmful error affirmative defense, which
relies on that evidence. PFR File, Tab 1 at 6. Similarly, because we find the
5 The administrative judge’s order granting sanctions did not provide details concerning
the appellant’s response to the ord er compelling discovery. 0 714 IAF, Tab 23 at 1. It
simply indicated that the appellant failed to comply. Id. The administrative judge later
described her sanctions as stemming from the appellant’s failure to cooperate in
discovery. ID at 3 -4, 11. To clarify, the appellant did provide responses to the agency
after being ordered to do so, but the nature of those responses and lack of cooperation,
generally, warranted the sanctions imposed.
14
imposition of sanctions proper, we will not revisit the appellant’s unequivocal
hearing waiver, which he now attributes to the sanctions precluding him from
testifying. Id. at 9; see 0714 IAF, Tab 36 at 4.
The administrative judge properly determined that the agency proved its
charge.
¶28 As further detailed in its proposal letter, the agency’s conduct unbecoming
charge included two specifications, alleging that the appellant mishan dled PII and
failed to follow the agency’s protocols for reporting a PII breach when
he (1) reported a compromise of PII on March 26, 2013, with a link to that PII, to
the wrong agency official and from his private email account, and (2) reported the
compr omise of PII on March 27, 2013, with a link to that PII, to 17 other agency
employees. 0714 IAF, Tab 5 at 39 -40. The administrative judge found that the
agency met its burden of proving both specifications underlying the single charge.
ID at 12 -14.
¶29 In finding that the agency met its burden, the administrative judge indicated
that “[t]he record shows, and the appellant does not dispute, that he sent the two
emails in question and that both emails included a link to the compromised PII.”
ID at 13. On r eview, the appellant asserts that he did dispute the agency’s
allegations. PFR File, Tab 1 at 6 -7. In doing so, he cites t o evidence
he submitted with his indefinite suspension appeal. Id. at 6 (referencing
0047 IAF, Tab 1 at 25 -26).6 That evidence is a September 2013 letter he sent to
the Federal Bureau of Investigation (FBI), containing a number of allegations,
one of which seems to assert that the emails underlying his removal did not link
to the compromised PII. 0047 IAF, Tab 1 at 24 -27.
6 In his petition for review, the appellant identified the evi dence to which he was
referring as “initial appeal DC -0752 -14-0047 -I-1 at 22 -23.” PFR File, Tab 1 at 6. We
have concluded that the appellant was citing his own pagination and referring to 0047
IAF, Tab 1 at 25 -26.
15
¶30 Even if w e were to find that the administrative judge should have but failed
to consider this evidence from the appellant’s other appeal that he now
references, we find that it would not warrant a different result. That single letter
from the appellant to the FBI, alleging that he did nothing wrong, does not
outweigh the agency’s probative evidence in support of the charge. See, e.g .,
0714 IAF, Tab 5 at 47 -56, 65 -66, Tab 6 at 20 -21, Tab 42 at 12 -13. Among other
things, that agency evidence included sworn declarat ions of multiple agency
officials indicating that the appellant’s emails did, in fact, link to the
compromised PII. 0714 IAF, Tab 5 at 47 -49, Tab 42 at 11 -12. Accordingly, we
agree with the administrative judge’s conclusion that the agency proved its
charge.7
The administrative judge correctly found that the agency proved nexus and
the reasonableness of the penalty.
¶31 In addition to the requirement that the agency prove its charge, the agency
also must prove that there is a nexus, i.e., a clear and direct relationship between
the articulated grounds for the adverse action and either the appellant’s ability to
accomplish his duties satisfactorily or some other legitimate Government interest.
Campbell v. Department of the Army , 123 M.S.P.R. 674 , ¶ 24 (2016). Here, the
administrative judge indicated that the nexus requirement was met because the
appellant’s misconduct occurred on du ty. ID at 18. We agree. See Campbell ,
123 M.S.P.R. 674 , ¶ 24 (recognizing that there is a presumption of a nexus when
the misconduct occurred in part at work). Although the appellant disputes nexus,
7 As to the appellant’s affirmative defenses in his removal appeal, on review he only
alleges that the administrative judge erred in finding that the agency returned him to
duty upon reinstatement of his security clearance. PFR File, Tab 1 at 9 (citing
ID at 18). He argues that the agency’s failure to return him to work was “arbitrary” and
thus violated merit systems principles. Id. However, contrary to the appellant’s claims,
the administrative judge found that the agency declined to return the appellant to work,
and instead proposed his removal. ID at 12. The language that the appellant challenges
is the administrative judge’s characterization of his claims. ID at 18; 0714 IAF, Tab 43
at 6-7. We find no reason to disturb the administrative judge’s fi ndings that the
appellant failed to prove this and his other affirmative defenses. ID at 14 -18.
16
generally, he has failed to present any substantive argument warranting further
analysis or a different conclusion. PFR File, Tab 1 at 9.
¶32 In an adverse action appeal such as this , the Board also will review
an agency -imposed penalty, but only to determine if the agency considered all the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Campbell , 123 M.S.P.R. 674 , ¶ 25. In making this
determination, the Board must give due weight to the agency’s primary discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Id. It is not the Board’s role
to decide what penalty it would impose, but, rather, to determine whether the
penalty selected by the agency exceeds the maximum reasonable penalty. Id.
¶33 The administrative judge found that the agency did consider the relevant
penalty factors and that rem oval was within the tolerable limits of reasonableness.
ID at 18 -19. She noted, inter alia, that the appellant had not expressed any
remorse for his behavior. Id. at 19. On review, the appellant disputes that
penalty factor. PFR File, Tab 1 at 7 -8. H e asserts that he properly reported the
compromised PII and did nothing wrong, so it was inappropriate to consider his
lack of remorse. Id. This argument is unavailing because the agency proved its
charge. ID at 12 -14. It also further supports the admi nistrative judge’s
conclusion that the appellant has not expressed remorse. Absent any other
argument concerning the penalty, we discern no basis for disturbing the
administrative judge’s well -reasoned conclusion that removal was reasonable.
¶34 To conclude , in the appellant’s indefinite suspension appeal, we affirm the
administrative judge’s determination that the agency rescinded the adverse action .
We modify the standar ds and reasons for why the appellant failed to prove his
claims of EEO and whistleblower reprisal in that appeal . In the appellant’s
removal appeal, we affirm the administrative judge’s findings, sustaining the
action.
17
NOTICE OF APPEAL RIG HTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the n ature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failu re to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in pa rt, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Ci rcuit), within 30 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 repres entative receives this decision. If the action involves a claim of
19
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requir ement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
20
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decembe r 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
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 | HUFFMAN_DIRK_A_DC_0752_14_0047_I_1_FINAL_ORDER_2018672.pdf | 2023-04-05 | null | S | NP |
3,319 | https://www.mspb.gov/decisions/nonprecedential/EARLY_JOSEPH_D_CB_1205_17_0011_U_1_FINAL_ORDER_2017960.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSEPH D. EARLY,
Petitioner,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER S
CB-1205 -17-0011 -U-1
CB-1205 -18-0020 -U-1
DATE: April 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph D. Early , Pittsburgh, Pennsylvania, pro se.
Julie Ferguson Queen , 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 pe titioner requests that we review 5 C.F.R. § 302.101 (c)(8), a provision
of an Office of Personnel Management (OPM) regulation that exempts attorney
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
positions from certain appointment procedures, and 5 C.F.R. § 335.103 , an OPM
regulation governing agency merit promotion plans. The two petitions present
similar issues related to veterans’ preference requirements , and therefore we
JOIN them for consideration . See 5 C.F.R. § 1201.36 (a)(2) (joinder occurs when
one person has filed two or more appeals and they are united for consideration).
For the reasons set forth below, we DENY the petitioner’s request s because they
do not meet our discretionary review criteria.
BACKGROUND
¶2 The petitioner is a preference -eligible veteran who applied, but was not
selected, for excepted -service attorney positions with the Department of Veterans
Affairs (VA) . In his first petition, Early v. Office of Personnel Management ,
MSPB Docket No. CB-1205 -17-0011 -U-1, Request File (0 011 RF), Tab 1, h e
challenges the validity of 5 C.F.R. § 302.101 (c)(8) . That provision states the
following :
Positions exempt from appointment procedures . In view of the
circumstances and conditions surrounding employment in the
following classes of positions, an agency is not required to apply the
appointment procedures of this part to them, but each agency shall
follow the principle of veteran preference a s far as administratively
feasible and, on the request of a qualified and available preference
eligible, shall furnish him/her with the reasons for his/her
nonselection. Also, the exemption from the appointment procedures
of this part does not relieve age ncies of their obligation to accord
persons entitled to priority consideration ( see § 302.103 ) their rights
under 5 U.S.C. 8151 :
. . .
(8) Attorney positions . . . .
5 C.F.R. § 302.101 (c)(8).
¶3 The petitioner contends that section 302.101(c) (8) “unlawfully purports to
exempt agencies from complying with veterans’ preference requirements when
hiring for attorney positions.” 0011 RF, Tab 1 at 2, 5. He primarily focuses on
3
two requirements: the application of preference points when attorney applicants
are scored and ranked, and the rights afforded to preference -eligible candidates
when a hiring agency decides to “pass over” him or her in favor of a
nonpreference -eligible candidate. See 0011 RF, Tab 9 at 5 (alleging that the VA
“does not add points to an applicant’ s unassembled examination score nor does
OPM require a ny sort of pass over procedures ”). OPM responds that the Board
should deny the request because the petition does not meet the Board’s prudential
criteria for review. 0011 RF, Tab 8 at 21.3 In particular, OPM points out that the
Board’s reviewin g court, the U.S. Court of Appeals for the Federal Circuit, has
upheld the validity of 5 C.F.R. § 302.101 (c)(8) in two precedential opinions,
Patterson v. Department of the Interior , 424 F.3d 1151 (Fed. Cir. 2005), and
Jarrard v. Department of Justice , 669 F.3d 1320 (Fed. Cir. 2012). Id. at 12. In
his reply, the petitioner asserts that Patterson and Jarrard are distinguishable.
0011 RF, Tab 9 at 5 -9.
¶4 In his second request for regulation review, the petitioner challenges the
simultaneous use of the competitive examination process and a merit promotion
plan for a single position. Early v. Office of Personnel Management , MSPB
Docket No. CB-1205 -18-0020 -U-1, Request File (0 020 RF), Tab s 1, 9. OPM’s
regulation at 5 C.F.R. § 335.103 authorizes agencies to devise and utilize merit
promotion plans “to insure a systematic means of selection for promotion
according to merit.” 5 C.F.R. § 335.103 (a).4 The p etitioner contends that the
regulation violates veterans’ preference requir ements by (1) not following the
rule that an agency must select from among the top three applicants on the
register corresponding to that position; (2) permitting agencies to select
3 When referring to pleadings filed electronically, the Board cites to the
computer -generated page numbering.
4 In his reply, the petitioner states that he is also challenging 5 C.F.R. § 335.102 , which
delineates an agency’s authority to promote, demote, or reassign its employees, and
5 C.F.R. § 211.102 (d)(6), which states that “veterans ’ preference does not apply . . . to
in-service placement actions such as promotions.” 0020 RF, Tab 9 at 4.
4
candidates from more than one certificate of eligible s; (3) bypassing the rights
afforded to a preference -eligible veteran when an agency decides to “pass over”
him or her in favor of a nonpreference -eligible candidate; and (4) not following
alternative ranking and selection procedures. 0020 RF, Tab 1. OPM responds
that the Board s hould deny the request because the petition does not meet the
Board’s prudential criteria for review. 0020 RF, Tab 8. In particular, OPM notes
that the Federal Circuit upheld the validity of merit promotion plans in Joseph v.
Federal Trade Commission , 505 F.3d 1380 (Fed . Cir. 2007) . 0020 RF, Tab 8 at
8-9. In his reply , the petitioner argues that Joseph did not address his argument
that an agency must select applicants from a single certificate. 0020 RF, Tab 9 at
4.
ANALYSIS
Jurisdiction
¶5 A petitioner generally establishes the Board’s jurisdiction under 5 U.S.C.
§ 1204 (f) by describing in detail the reasons why an OPM regulation , either on its
face or as implemented, would require an employee to commit a prohibited
personnel practice ; by specifically identifying the prohibited personnel practice at
issue ; and by explaining the action the requester would like the Board to take.
5 U.S.C. § 1204 (f)(2); 5 C.F.R. § 1203.11 (b); see Di Jorio v. Office of Personnel
Management , 54 M.S.P.R. 498 , 500 (1992). Here, the petitioner alleges that
5 C.F.R. § 302.101 (c) “unlawfully purports to exempt agencies from complying
with veterans ’ preference requirements when hiring for attorney positions,” in
violation of 5 U.S.C. § 2302 (b)(11)5 and (b)(12).6 0011 RF, Tab 1 at 10 -11.
5 Pursuant to 5 U.S.C. § 2302 (b)(11), it is a prohibited personnel practice to “(A)
knowingly take, recommend, or approve any personnel action if the taking of such
action wo uld violate a veterans ’ preference requirement; or (B) knowingly fail to take,
recommend, or approve any personnel action if the failure to take such action would
violate a veterans ’ preference requirement.”
6 Under 5 U.S.C. § 2302 (b)(12), it is a prohibited personnel practice to “ take or fail to
take any other personnel action if the taking of or failure to take such action violates
5
Similarly, the petitioner argues that 5 C.F.R. § 335.103 violates 5 U.S.C.
§ 2302 (b)(11 ) and (b)(12) because it allows hiring agencies to circumvent certain
preferenc e-eligible requirements. 0020 RF, Tab 1 (continuation sheet). The
petitioner’s allegations are sufficient to establish our regulation review
jurisdiction under 5 U.S.C. § 1204 (f).
Exercise of Dis cretion
¶6 Our regulation review authority, however, is discretionary. See 5 U.S.C.
§ 1204 (f)(1)(B) (providing that the Board grants a petition for regulation review
“in its sole discretion” ); Clark v. Office of Personnel Management , 95 F.3d 1139 ,
1141 (Fed. Cir. 1996) ( recognizing that Congress explicitly authorized the Board
to review direc tly any provision of any OPM rule or regulation and stated that the
decision whether to grant such review was in the Board ’s “sole discretion”). To
guide us in deciding whether to exercise our discretion , we consider , among other
things, the likelihood th at the issue will be timely reached through ordinary
channels of appeal, the availability of other equivalent remedies, the extent of the
regulation’s application, and the strength of the arguments against the validity of
its implementation. McDiarmid v. U.S. Fish and Wildlife Service , 19 M.S.P.R.
347, 349 (1984). Upon careful consideration of these factors , we decline the
petitioner’s request s for regulat ion review.
Ordinary Channels of Appeal
¶7 The issue s raised by the petitioner could be timely reached through ordinary
channels of appeal. The Veterans Employment Opportunities Act of 1998
(VEOA ) provides that a preference -eligible veteran “who alleges that an agency
has violated such individual ’s rights under any statute or regulation relating to
veterans ’ preference may file a complaint with the Secretary of Labor.” 5 U.S.C.
§ 3330a (a)(1) ; see Dean v. Department of Labor , 808 F.3d 497 , 499 (Fed. Cir.
any law, rule, or regulati on implementing, or directly concerning, the merit system
principles ” set forth at 5 U.S.C. § 2301 .
6
2015) (VEOA provides a remedy for a preference -eligible veteran who alleges
that an age ncy has violated his rights under any statute or regulation relating to
veterans’ preference). In fact, the petitioner has previously filed VEOA
complaints with the Department of Labor, and subsequent appeals to the Board,
when he was not selected for att orney positions with the VA. See 0011 RF , Tab 1
at 11 -12. In his VEOA appeals, the petitioner alleged that the VA did not
properly award him the preference to which he is entitled under the Veterans’
Preference Act of 1944 (VPA), Pub. L. No. 78 -359, 58 S tat. 387 . Id. at 11. The
petitioner states that he volunta rily withdrew his VEOA appeal s beca use in both
instances the VA appointed a nother preference -eligible applicant . Id.; see Early
v. Department of Veterans Affairs , MSPB Docket No. PH-3330 -16-0343 -I-1,
Initial Decision (July 20, 2016) (granting request to withdraw appeal); Early v.
Department of Veterans Affairs , MSPB Docket No. PH -3330 -15-0318 -I-1, Initial
Decision (July 22, 2015) (granting request to withdraw appeal). Nevertheless , the
petitioner’s VEOA appeals demonstrate that the issues he presents here may be
timely reached through ordinary channels of appeal. We note that, i n addition to
VEOA , the petitioner may be able to present his claim s under the Uniformed
Services Employ ment and Reemployment Rights Act (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA) if he believes an agency did not select him
due to his prior military service. See Patterson , 424 F.3d at 1161.
Equivalent Remedies
¶8 In the context of a VEOA or USERRA ap peal, the Board could consider the
petitioner’s claim s regarding the validity of applicable OPM regulations . See,
e.g., Gingery v. Department of Defense , 550 F.3d 1347 , 1354 (Fed. Cir. 2008)
(holding that 5 C.F.R. § 302.401 (b) is invalid because it does not give effect to
the unambiguously expressed intent of Congress as expressed in the VPA).
Because VEOA and USERRA provide a procedure for the petitioner to contest
7
both his nonselection and the validity of the challenged regu lation s, we conclude
that equivalent remedies are available .
Extent of Chall enged Regulation s’ Application
¶9 We find that the third factor —the extent of the regulation s’ application —
weigh s in favor of review. The regulatory provision s challenged in MSPB
Docket No. CB-1205 -17-0011 -U-1 affect all preference -eligible applicants for
attorney positions in the excepted service , and those at issue in MSPB Docket No.
CB-1205 -18-0020 -U-1 concern applicants who apply for positions where a merit
promotion plan is used along with competitive examination. T herefore , both
petitions are broad enough to warrant our review. Cf. Brown v. Office of
Personnel Management , 91 M.S.P.R. 314 , ¶ 5 (2002) (finding that the challenged
rule had “very limited application” because it applied only to “one installa tion of
one Federal agency”).
Strength or Weakness of Petitioner’s Arguments
¶10 As OPM notes, the strength or weakness of a petitioner’s arguments , by
itself, may be the dispositive factor. See 0011 RF, Tab 8 at 3 (citing Ward v.
Office of Personnel Manage ment , 79 M.S.P.R. 623 , 626 ( 1998 ); Senior Executives
Association v. Office of Personnel Management , 67 M.S.P.R. 643 , 653 -54
(199 5)). Here , as the petitioner acknowledges , there are Federal Circuit decisions
that present obstacles to h is arguments. 0011 RF, Tab 1 at 1, 6 -11; 0020 RF, Tab
9 at 4 -6.
¶11 The petitioner contends that 5 C.F.R. § 302.101 (c) “unlawfully purports to
exempt agencies from complying with veterans ’ preference requirements when
hiring for attorney positions,” in violation of 5 U.S.C. § 2302 (b)(11). 0011 RF,
Tab 1 at 2 , 5. He focuses on two veterans’ preference requirements: the
application of preference points when atto rney applicants are scored and ranked,
and the rights afforded to a preference -eligible veteran when a hiring agency
decides to “pass over” him or her in favor of a nonveteran candidate. T hese
8
issues have been addressed in Patterson and Jarrard , precedent ial decisions
issued by the Federal Circuit , which is our reviewing court. See 5 U.S.C.
§ 7703 (b)(1); Fairall v. Veterans Administration , 33 M.S.P.R. 33 , 39 (decisions
of the Federal Circuit are “controlling authority on the Board”), aff’d , 844 F.2d
775 (Fed. Cir. 1987).
¶12 In Patterson , a case brought pursuant to VEOA and USERRA, the Federal
Circuit held that OPM has delegated authority from the President under 5 U.S.C.
§ 3302 (1) to except attorney positions from the competitive service. 424 F.3d at
1155 n.4. The court held that 5 C.F.R. § 301. 102(c)(8) ( codified as (c)(9) at the
time of the decision) “ represents a reasonable interpretation of how 5 U.S.C.
§§ 3309 and 3320 apply to attorney positio ns within the excepted service” and
that OPM’s positive factor test7 was a reasonable way of following the principle
of veteran s’ preference as far as administratively f easible in the case of a
preference eligible applying for an excepted -service attorney position. Id. at
1159 -1160. The petitioner maintains that Patterson is not dispositive of his
“rating and ranking ” claim because “the validity of the regulation was only
challenged in relation to 5 U.S.C. § 3309 and not in re lation to 5 U.S.C. § 3318 ,
5 U.S.C. § 1104 , or 5 U.S.C. § 1302 , as I am doing h ere.” 0011 RF, Tab 1 at 6.
The court specifically noted, however, that OPM has the statutory authority and
responsibility to enforce veterans’ preference in the excepted service under
5 U.S.C. § 130 2(c). Patterson , 424 F.3d at 1156. The court necessarily
considered 5 U.S.C. § 3318 because that provision applies to the excepted service
pursuant to section 3320. Id. at 1156 -57. The petitioner states that the regulation
violates 5 U.S.C. § 1104 “for failing to set standards,” see 0011 RF, Tab 9 at 19,
but that argument also appears to be contradicted by Patterson , which ef fectively
7 OPM regulations provide that, w hen candidates for an excepted -service position are
evaluated wi thout numerical rankings, the hiring agency must use the veterans’
preference as a “plus factor.” 5 C.F.R. § 302.201 (b); see Patterson , 424 F.3d at
1158 -59.
9
validates the “positive factor test” as the standard applicable to consideration of
preference -eligible applicants for excepted -service positions.
¶13 In Jarrard , a VEOA case, the Federal Circuit held that agencies filling
excepted -service attorney positions are exempt from the “pass over” provisions of
5 U.S.C. § 3318 and a re not required to file written reasons with OPM and seek
OPM’s permission before passing over a preference -eligible can didate. 669 F.3d
at 1326. The petitioner faults the Jarrard court for relying on “misguided and
meritless” opinions from th e Office of Legal Counsel (OLC) at the Department of
Justice that the petitioner believes “misstate facts and misinterpret law.” 0011
RF, Tab 1 at 7-8. The petitioner’s disagreements with the analysis in Jarrard ,
including the adoption of OLC’s analysis , do not present strong arguments given
that Jarrard is binding precedent on the Board.
¶14 Similarly, with respect to 5 C.F.R. § 335.103 , the Federal Circuit has held
that merit promotion procedures do not violate veterans’ preference rights.
Joseph , 505 F.3d at 1383 -84. The petitioner states that Joseph did not address
whether a hiring agency is required to use a single certificate. 0020 RF , Tab 9 at
4. T he petitioner asserts that an agency may not simultaneously use both merit
promotion and competitive examination to fill the same position. In Joseph , the
court noted that Joseph did not challenge the hiring agency’s “simultaneous use
of the open competition examination process (in which his veterans ’ ten-point
preference was recognized) and the merit promotion process (in which that
preference w as not recognized) to fill a single position.” Joseph , 505 F.3d at
1383. But even if the issue was not squarely addressed in Joseph , it was decided
a year later in Dean v. C onsumer Product Safety Commission , 548 F .3d 1370 ,
1373 (Fed . Cir. 2008) . There, the court held that “[a]n agency ’s simultaneous use
of the competitive process and the merit promotion process is not of itself a
violation of v eterans ’ preference.” Dean , 548 F .3d at 1373.
¶15 Taken as a whole, the McDiarmid factors weigh against review. The
likelihood that the issue will be timely reached through ordinary channels of
10
appeal, the availability of other equivalent remedies, and the existence of binding
Federal Circuit precedent persuade us not to exercise our discretion to review the
petitioner’s challenge to the validity of 5 C.F.R. § § 302.101 (c)(8 ) and 335.103 .
McDiarmid , 19 M.S.P.R. at 349.
ORDER
¶16 Accordingly, the petitioner’s request s for regulation review are denied .
This is the final decision of the Merit Systems Protection Board in this
proceedin g. Title 5 of the Code of Federal Regulations, section 120 3.12(b)
(5 C.F.R. § 1203.12(b)).
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal 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.
8 The Board has updated the n otice 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
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 lat er than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) a nd 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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 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 ju dicial 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 judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cour t 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 wh istleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | EARLY_JOSEPH_D_CB_1205_17_0011_U_1_FINAL_ORDER_2017960.pdf | 2023-04-04 | null | S | NP |
3,320 | https://www.mspb.gov/decisions/nonprecedential/SPRUILL_JEFFREY_P_DA_0752_17_0254_I_1_FINAL_ORDER_2017972.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY P. SPRUILL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
DA-0752 -17-0254 -I-1
DA-0752 -17-0254 -C-1
DATE: April 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony R ogers , San Antonio, Texas, for the appellant.
Robert C. Burlison , III, Esquire , San Antonio, 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 f or review of the compliance initial
decision in Spruill v. Department of Veterans Affairs , MSPB Docket
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decis ion issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is includ ed in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
No. DA-0752 -17-0254 -C-1 (compliance proceeding ), which denied his petition
for enforcement of a settlement agreement. As discussed below, we deem the
appellant’s petition for review also to constitute a petition for review of the initial
decision in Spruill v. Department of Veterans Affairs , MSPB Docket
No. DA-0752 -17-0254 -I-1 (merits appeal), which dismissed his appeal as settled.
Generally, we grant pe titions 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 th ese matters , we JOIN the merits appeal and the
compliance proceeding pursuant to 5 C.F.R. § 1201.36 . We find that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review in either matter . Therefore, we DENY the petitions for review
and AFFIRM the initial decisions, which are now final. 5 C.F.R. § 1201.113 (b).
¶2 Effective February 12, 2017 , the agency removed the appellant from his
position as a Housekeeping Aid. Spruill v. Department of Veterans Affairs ,
MSPB Docket No. DA -0752 -17-0254 -I-1, Initial Appeal File (IAF), Tab 10 at 9.
The appellant filed an appeal of his removal. IAF, Tab 1. W hile his appeal was
pending, the parties reached a settlement agreement. IAF, Tab 21. In pertinent
part, the settlement agreement prov ided that, “[w]ithin 60 days from the effective
date of this Agreement, the Agency will pay to Employee the amount of
$15,000.” Id. at 7, ¶ 2(b). The opening paragraph of the agreement identified the
appellant, Jeffrey P. Spruill, as “Employee.” Id. at 7. The agreement further
3
provided that “[t]he Employee shall be solely responsible for the payment of
attorney fees and costs, if any, related to prosecution of complaints and other
actions against the Agency,” including his Board appeal. Id. at 7-8, ¶¶ 1(b), 4(e).
The administrative judge entered the agreement into the record for enforcement
purposes and dismissed the appeal. IAF, Tab 22, Initial Decision (ID). The
initial decision became the Board’ s final decision on July 10, 2017 , when neither
party petitioned for review of the decision. ID at 3.
¶3 On August 27 , 2017, the appellant ’s representative filed a petition for
enforcement contending that the agency breached the agreement by not deposit ing
the $15,000 payment into the representative’s checkin g account or otherwise
confirming the payment with him . Spruill v. Department of Veterans Affairs ,
MSPB Docket No. DA -0752 -17-0254 -C-1, Compliance File (CF), Tab 1 at 5. The
representative stated that he had not been able to contact the appellant to conf irm
whether the appellant had received the settlement payment. Id. During the
compl iance proceeding , the representative also argued that the settlement
agreement was void as a result of the agency’s direct communica tions with the
appellant to facilitate payment to him , instead of going through his designated
representative. CF, Tab s 8-10.
¶4 After affording the parties appropriate notice of the burdens and elemen ts of
proof in a compliance proceeding , providing them with the opportunity to submit
eviden ce and argument in support of their respective positio ns, and considering
the parties’ submissions, the administrative judge denied th e petition for
enforcement, finding that the agency had complied with the terms of the
settlement by paying the appellant $15,000 . CF, Tab 11, Complianc e Initial
Decision (CID) at 5. T he administrative judge informed the appellant that he
could challenge the vali dity of the agreement by filing a petition for review with
the Board regarding the initial decision dismissing hi s removal appeal as settled.
CID at 5 n.4 .
4
¶5 The appellant , through his representative, has filed a petition for review ,
which was originally docketed solely as a petition for review in the compliance
proceeding . Spruill v. Department of Veterans Affairs , MSPB Docket
No. DA-0752 -17-0254 -C-1, Petition for Review (C-1 PFR) File, Tab s 1-2.
Because the petition raises a claim that the settlement agreement is invalid , the
petition has been docketed and considered also as a petition for review of the
initial dec ision dismissing the merits appeal as settled . Spruill v. Department of
Veterans Affairs , MSPB Docket No. DA -0752 -17-0254 -I-1, Petition for Review
(I-1 PFR ) File, Tab 1 at 4 -8, Tab 2; see, e.g. , Hazelton v. Department of Veterans
Affairs , 112 M.S.P.R. 357, ¶¶ 8-9 (2009). In particular, his representative
contends that the agency improperly contacted the appellant without notifying
him and coerced the appellant into signing a vendor form to receive payment of
the settlement amou nt. I -1 PFR File, Tab 1 at 4 -8. He also contends that such
actions were an effort to coerce, threaten, or discriminate against the appellant
because of his disabilities.3 Id. at 7.
¶6 The Board will only set aside a settlement agreement as invalid u nder very
limited circumstances, including when it is unlawful or was the result of fraud,
coercion, or mutual mistake. See Henson v. Department of the Treasury ,
86 M.S.P.R. 221 , ¶ 5 (2000). Such g rounds for invalidating the agreement pertain
to defects in the settlement agreement itself or to the circumstances present at the
time that the parties signed the agreement. They do not pertain to events
occurring after the agreement w as signed, including an agency’ s alleged improper
ex parte communication to facilitate a settlement payment. Becaus e the appellant
has not identified anything improper about the settlement agreement itself or the
circumstances under which he entered into it, we deny his petition for review of
3 The appellant has submitted numerous documents with his petition, all of which are
already part of the record and none of which change the outcome of either the merits
appeal or compliance proceeding .
5
the initial decision dismissing the merits appeal as settled .4 See Peters v. Defense
Commissary Agency , 59 M.S.P.R. 512, 513 -14 (1993) (treating allegations that an
agency acted in bad faith based on actions tak en after a settlement agreement was
executed as allegations of breach of the agreement, rather than as a basis for
invalidating the agreement).
¶7 We further find no basis to disturb the compliance initial decision, which
denied the appellant’s petition for e nforcement. On review, t here is no dispute
with the administrative judge’s finding that the agency timely paid the amount
required by the settlement agreement. CID at 5. Instead , the appellant’s
representative continues to argue that the agency acted im properly by
communicating with the appellant and making this payment directly to h im rather
than to his representative . E.g., C-1 PFR File, Tab 1 at 4-8. We discern no error
in the administrative judge’s finding that the terms of the settlement agreement
provided for payment to the appellant, not his representative . CID at 4-5; IAF,
Tab 21 at 7-8. Moreover, no term of the agreement forbade communication with
the appellant to effectuate the payment or required the payment to go through his
representative . IAF, Tab 21 at 7 -10.
¶8 We have considered the appellant’s representative ’s assertions of allegedly
improper and coercive “ex parte” communications between agency employees and
the appellant that led to this payment being made directly to the appellant without
his representative’s knowledge or consent. E.g., C-1 PFR File, Tab 1 at 4-8. A
party may breach a settlement agreement by acting in bad faith concerning a
settlement term. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299,
¶ 15 (2014). “Bad faith” in this context is not simply bad judgment or negligence
but instead implies conscious wrongdoing because of dishonest purp ose or moral
obliquity. Id. We find that the alleged facts , even if proven, would not support a
finding that the agency acted in “bad faith” amounting to a breach of the
4 In light of our finding, we do not address the timeliness of the appellant’s petition for
review of the initial decision in the merits appeal. I-1 PFR File, Tab 2 at 1 -2, Tab 3.
6
agreement . The agency communicat ed with the appellant to arrange for the
timely pay ment to him required by the agreement , and, as a result, he received
timely payment . CID at 4-5. We find no indicia of “bad faith” in the agency’s
actions to comply with the agreement. The appellant’s representative’s reliance
on the Board’s regulations regarding “ex parte” communications to demonstrate
agency wrongdoing is misplaced. E.g., C-1 PFR File, Tab 1 at 39-42. The
regulations at 5 C.F.R. §§ 1201.101 —.103 concern a communic ation between an
interested party and a decision -making official of the Board, which is not the
basis for his allegation of breach here.5 See 5 C.F.R. § 1201.101 (a). The
appellant’s r epresentative has suggested that t he agency ’s conduct may have been
“unethical.” CF, Tab 8 at 4, 10. To the extent that the appellant may be a sking
the Board to sanction the agency attorney, t he Board lacks the general author ity
to enforce state bar rules of professional conduct against attorney representatives
in proceedings before the Board, and we make no findings on such issues here.
See Gubino v. Department of Transportation , 85 M.S.P.R. 518, ¶ 11 (2000);
Christofili v. Department of the Army , 81 M.S.P.R. 384, ¶¶ 19-21 (1999) .
Nevertheless , we find nothi ng in the record before us to suggest it would be
appropriate for the Board to invoke the authority it does possess to sanction the
agency or its representatives in these circumstances . E.g., 5 C.F.R.
§§ 1201.31 (d), 1201.43. Therefore, we affirm th e compliance initial decision.
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
5 The appella nt’s representative has not provided any evidence or allegations of fact to
support his speculative assertion that “[b]oth [agency] attorneys may have contacted the
[administrative j]udge, which could be ex -parte.” C -1 PFR File, Tab 1 at 5. We find
that this speculation does not warrant disturbing the compliance initial decision.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirem ents. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If yo u have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board or der must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N .W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.msp b.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represent ation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in w hole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for t he Federal Circuit), within 30 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 waive r of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D. C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The Al l Circuit Review Act, signed into law by the President on
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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 court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPRUILL_JEFFREY_P_DA_0752_17_0254_I_1_FINAL_ORDER_2017972.pdf | 2023-04-04 | null | S | NP |
3,321 | https://www.mspb.gov/decisions/nonprecedential/REDMOND_SHEILA_G_DC_0752_15_0578_B_1_FINAL_ORDER_2018009.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHEILA G. REDMOND,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -15-0578 -B-1
DATE: April 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard E. Patrick , Esquire, Harpers Ferry, West Virginia, for the
appellant.
Emily Shilts , 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 remand initial decision,
which dismissed her alleged involuntary retirement appeal for lack of Board
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
jurisdiction . Generally, we grant petitions such as this one only in the following
circum stances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was a Supervisor y Social Worker , or Chief, of the agency’s
Woodb ridge Behavioral Clinic at the Fort Belvoir Community Hospital (FBCH).
Redmond v. Department of Defense , MSPB Docket No. DC -0752 -15-0578 -I-1,
Initial Appeal File (IAF), Tab 9 at 12; Redmond v. Department of Defense , MSPB
Docket No. DC -0752 -15-0578 -B-1, Remand File (RF) , Hearing Tran script (HT)
at 9 (testimony of the Chief of Staff) .3 In the instant appeal, she alleged that
beginning in July 2011, the agency took a number of actions that coerced her into
retiring on November 30, 2012. IAF, Tab 1, Tab 9 at 12. For example, she
alleg ed that the agency’s actions included the unwarranted removal from her
position as Chief of the Woodbridge Behavioral Clinic and failure to
3 Compact discs are available in the record for bot h days of the hearing. RF, Tabs 14,
18. However, a transcript is available only for the second day of the hearing.
Therefore, we have cited to the disc for testimony occurring on the first day of the
hearing and to the transcript for testimony occurring on the second day of the hearing.
3
accommodate her asthma. IAF, Tab 3 at 5. Without holding the requested
hearing, the administrative judge dismissed the appeal , finding that the appellant
failed to set forth a nonfrivolous allegation that her retirement was involuntary.
IAF, Tab 16, Initial Decision (ID).
¶3 The appellant filed a timely petition for review, which the Board granted.
The Board found th at the appellant raised a nonfrivolous allegation of jurisdiction
and that the administrative judge erred in dismissing the appeal without holding a
hearing. Thus, the Board remanded the appeal for a jurisdictional hearing.
Redmond v. Department of Defen se, MSPB Docket No. DC -0752 -15-0578 -I-1,
Remand Order (Jan. 19, 2016) ; RF, Tab 1.
¶4 On remand, the administrative judge issued a decision in which she
summarized the record evidence, including the hea ring testimony . RF, Tab 16,
Remand Initial Decision (RID) . She credited the testimony of the agency’s
witnesses for each of the alleged actions . RID at 5 -26. The administrative judge
found that some incidents did not occur as the appellant claimed and that the
agency actions concerning other incidents were ju stified. RID at 5 -26. The
administrative judge further found that a reasonable person in the appellant’s
position would not believe that she had no alternative but to retire. RID at 26 -27.
Thus, the administrative judge concluded that the appellant fai led to prove by
preponderant evidence that her retirement was involuntary. The administrative
judge observed that, absent a showing of an involuntary retirement, the Board
does not have jurisdiction to separately review the appellant’s allegations of equa l
employment opportunity ( EEO ) reprisal and discrimination. Accordingly, she
dismissed the appeal for lack of jurisdiction. RID at 27.
¶5 The appellant has filed a petition for review of the remand initial decision .
Remand Petition for Review (RPFR) File, Tab 1. The agency has filed a
response. RPFR File, Tab 3.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Generally, the Board lacks jurisdiction to review an employee’s decision to
retire, 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). However, if an
agency coerced the employee’s decision in a ma nner tha t deprived her of freedom
of choice, the Board will take jurisdiction over the matter as a constructive
removal. Id. An appellant may overcome the presumption of voluntariness by
showing that her retirement was the product of misinformation or deception by
the agency, intolerable working conditions , or the unjustified threat of an adverse
action. See SanSoucie v. Department of Agriculture , 116 M.S.P.R. 149 , ¶ 14
(2011) .
¶7 In cases such as this one, when the employee alleges that the agency took
actions that made working conditions so intolerable that she was driven to an
involuntary retirement, the Board will find an action in voluntary only if the
employee 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 retire. Vitale v. Department of Veteran s
Affairs , 107 M.S.P.R. 501 , ¶ 20 (2007). The doctrine of coerced involuntariness
is “a narrow one” and does not apply if the employee resigns or retires because
she “do es not want to accept . . . measures that the agency is authorized to adopt,
even if those measures make conti nuation in the job so unpleasant . . . that [s]he
feels that [s]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 than an employee is faced with
an unpleasant situation or th at [her] choice is limited to two unattractive options
does not make [her] 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 deci sion-making process that deprived her of
freedom of choice. Vitale , 107 M.S.P.R. 501 , ¶ 19. The Board addresses
allegations of dis crimination and reprisal in connection with an alleged
5
involuntary retirement only insofar as those allegations relate to the issue of
voluntariness and not whether they would establish discrimination or reprisal as
an affirmative defense. See, e.g., Pick ens v. Social Security Administration ,
88 M.S.P.R. 525 , ¶ 6 (2001). For the reasons discussed below, we agree with the
administrat ive judge that the appellant failed to establish by preponderant
evidence that her retirement was involuntary.
The administrative judge did not err in finding that the appellant failed to prove
that her retirement was involuntary .
¶8 On review, the appellant challenges the administrative judge’s credibility
determinations and argues that there is no evidence to support a finding that the
appellant’s testimony was not credible. RPFR File, Tab 1 at 6. Specifically, she
argues that, despite evidence that she ha d an asthma attack and that the agency
failed to immediately accommodate her, the administrative judge erroneously
stated that “none of the evidence in the record supports her claims and much of
her testimony was contradicted by the documentary record and the credible
evidence.” Id.
¶9 To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version she believes, and explain in detail why she found the chosen
version more credible , considering such factors as: (1) the witness ’s opportunity
and capacity to observe the event or act in question; (2) the witness ’s character;
(3) any prior inconsistent statemen t by the witness; (4) a witness’ s bias, or l ack of
bias; (5) the contradiction of the witness’ s version of events by other evidence or
its consistency with other evidence; (6) the inhere nt improbability of the
witness’ s version of events; and (7) the witness’ s demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987). In this case , the
administrative judge thoroughly reviewed the record evidence as demonstrated by
her explicit credibility determinations. RID at 5 -25. Specifically, she included a
detailed summary of the hearing testimony for each of the witnesses, including
6
the appellant , and then cited to Hillen in analyzing and explaining her credi bility
determina tions. RID at 23 -25. The administrative judge found that the agency’s
witnesses were credible because they testified in a “very clear, direct, and
straightforward manner.” RID at 23. She further found that their testimony was
consistent with the eviden ce of record. Id. In contrast, the administrative judge
did not find the appellant’s testimony to be clear, direct, or straightforward.4 RID
at 23.
¶10 Further more , the administrative judge found no evidence to support the
appellant’s claims and instead found that much of her testimony was contradicted
by the documentary record. RID at 23 -24. Here, because the administrative
judge’s determinations were founded on explicit credibility determinations based
on observing the demeanor of witnesses wh ile testifying at the hearing and the
evidentiary record, we see no basis upon which to overturn her findings in this
regard. See Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir.
2002) (finding that the Board may overturn credibility determinations that are
implicitly or explicitly based on demeanor only when it has “sufficiently sound”
reasons for doing so).
¶11 The appellant also ar gues that the administrative judge misstated the record
when she concluded that the Chief of Staff could not have created a hostile work
environment that forced the appellant to retire . RPFR File , Tab 1 at 8; RID
at 25-26. In reviewing the time pressure to make a decision about whether to
retire as a factor under Board law, the administrative judge correctly considered
the fact that the Chief of Staff only supervised the appellant for 90 days and that
she did not retire until a year later, after he was no longer her supervisor . RID
at 25-26. Although the appellant argues that the length of time is not a
4 The appellant argues on review that the administrative judge relied on “alleged
contradictions” between the appellant’s testimony and those of agency witnesses on
issues that were “immaterial” to her discrimination clai ms. RPFR File, Tab 1 at 6-7.
We disagree that these contradictions are not relevant to determining credibility. See
Hillen , 35 M.S.P.R. at 458.
7
determinative factor in a hostile work environment, we agree with the
administrative judge that both the duration of the alleged harassment and the
lengt h of time from when the har assment ended and the appellant’s retirement are
relevant to determining whether a reasonable person would be compelled to retire.
Terban v. Department of Energy , 216 F.3d 1021 , 1024 (Fed. Cir. 2000)
(observing that “ a long period of time between the alleged coercive act and the
employe e’s retirement diminishes the causal link between the se two events and ,
thus, attenuates the employee’s claim of involuntariness []”).
¶12 The appellant further contends that other individuals also created a hostile
work environment and discriminated against her . RPFR File, Tab 1 at 8.
However, as t he administrative judge correctly summarized, t he bulk of the
appellant’s testimony concerning her hostile work environment claims related to
the alleged treatment she received fro m the Chief of Staff . RID at 5 -10; R F,
Tab 14, Aug. 8, 2016 Hearing Compact Disc ( HCD ) (testimony of th e appellant).
On review , the appellant cites to the affidavit she completed in connection with
her EEO comp laint but does not identify any specific harassment allegations she
raised in this appeal that the administrative judge did not address. RPFR File,
Tab 1 at 8; IAF, Tab 7 at 5. In any event, 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).
¶13 The appellant next argues that the administrative judge erred by concluding
that she could have continued to work as Chief of the Woodbridge Behavioral
Clinic despite evidence to the contrary , including her testimony and that of the
Chief of Staff . RID at 2 6-27; RPFR File, Tab 1 at 7. We disagree. The
administrative judge correctly found that the agency’s witnesses credibly testified
that the appellant was never formally removed as Chief. RID at 20. Specifically,
the Chief of Staff testified that the appellant was advised that she would have to
temporarily step aside from the Chief position, and an interim Chief was
8
appointed to the clinic while the agency investigated staff complaints raised
against the appellant. Id.; HT at 18 -25 (testimony of the Chief of Staff) . The
Deputy Commander for Behavioral Health also testified t hat the appellant was
never removed from the Chief position and that she cou ld have continued to work
in that position as long as her work and conduct remained satisfactory. HCD
(testimony of the Deputy Commander for Behavioral Health). Indeed, even the
appellant testified that her job title, pay , and position description were never
changed. HCD (testimony of the appellant). Thus, the appellant has shown no
error by the administrative judge in concluding that she was never removed from
the Chief positio n. RID at 26 -27. Moreover, even if the appellant were alleging
that she retired to avoid eventually having to oppose a potential removal or
demotion from the Chief position, the mere fact that she was faced with the
unpleasant choice of either retiring o r opposing an agency action against her for
cause does not rebut the presumed voluntariness of her ultimate choice to retire.
Lloyd v. Small Business Administration , 96 M.S.P.R. 518 , ¶ 3 (2004).
¶14 The appellant also argues that the administrative judge erred by finding that
the agency accommodated her asthma condition by mov ing her to a new office.
RPFR File , Tab 1 at 5. She contends that the agency did not immediately
accommodate her medical condition because she was not moved to a new office
until several days after she had an asthma attack . Id.; RF , Tab 10 at 5, 8. She
asserts that the testimony of the Chief of Occupational Medicine supports her
claim that she was not immediately accommodated . RPFR File , Tab 1 at 5 .
¶15 The Chief of Occupational Medicine testified that he treated the appellant
on the date of her asthma attack and that he and the Deputy Commander for
Behavioral Health, the appellant’s second -level supervisor, instructed her to
report the following day to the same facility, the FBCH. Rather than returning to
work the following day, however, the appellant too k several days of sick leave.
HT at 67 -71 (testimony of the Chief of Occupational Medicine) . The Chief of
Occupational Medicine ’s testimony does not support the appellant’s claim that the
9
agency retaliated against her by not immediately accommodating her with a new
office , as she alleges. Instead, h is testimony reflects only that the appellant was
not at work when he followed up to verify whether she had been officially moved
to a different office based on her request after the asthma attack but that she was
out “sick, or something.” Id. at 69-70.
¶16 Likewise, t he Deputy Commander for Behavioral Health testif ied that the
appellant immediately went on sick leave for a few days after being treated by the
Chief of Occupational Medicine and that when she returned she was given a new
office at the FBCH. HCD (testimony of the Deputy Commander for Behavior
Health) . Thus, this evidence reflects that, even though the agency was not able to
move the appellant to a new office during th e time she was out on sick leave,
when she did return, she was immediately accommodated. Id. Under the se
circumstances, we find no unre asonable delay by the agency in addressing the
appellant’s request for accommodation. See Rosario -Fabregas v. Department of
the Army , 122 M.S.P.R. 468, ¶¶ 13-16 (2015 ) (declining to find that an agency
delayed an appellant’s return to work in violation of the Americans with
Disabil ities Act Amendments Act of 2008 when it reasonably requested additional
medical documentation) , aff’d , 833 F.3d 1342 (Fed. Cir. 2016) . Accordingly, we
find no error in the administrative judge’s findings in this regard.
¶17 In addition , the ap pellant argues that the administrative judge improperly
considered the fact that she was given a very large retirement party prior to her
departure . RPFR File , Tab 1 at 9. The appellant contends that the size of her
retirement party is irrelevant to whet her her decision to retire was involuntary.
However, in considering the totality of the circumstances concerning the
voluntariness of the appellant’s retirement, we find that the administrative judge
properly considered the evidence of record , which inclu ded testimony that the
appellant had openly contemplated retirement as early as 2010, that she routinely
spoke of retiring, that on several occasions in the months leading up to her
retirement she posted on her Facebook page her desire to retire, and that “she had
10
a large retirement party where she received gifts, and followed up by sending a
heartfelt thank you email to her colleagues.” RID at 25; see Vitale , 107 M.S.P.R.
501, ¶ 19 (explaining that the Board assesses the voluntariness of an employee’s
choice to retire under the totalit y of the circumstances) . Thus, we find no merit
to the appellant’s argument.
The administrative judg e did not make findings regarding whether the appellant
suffered an asthma attack, subjected subordinates to a hostile work e nvironment,
or engaged in fraud .
¶18 The appellant also argues that the administrative judge’s decision is based
on factual errors which led to a faulty conclusion. RPFR File, Tab 1 at 4. For
example, she asserts that the administrative judge erred in referring to an asthma
attack she had as an “apparent asth ma attack.” Id. at 5. She contends that there is
no evidence to support the administrative judge’s conclusion that she did not
suffer an asthma attack. Id.
¶19 The administrative judge made no finding as to whether the appellant did or
did not suffer an a sthma attack. Rather, the administrative judge found that the
Chief of Occupational Medicine testified that he treated the appellant for an
“apparent asthma attack.” RID at 21. We find this description of the testimony
to be accurate. T he Chief of Occu pational Medicine never stated that he
diagnosed the appellant as having an asthma attack. HT at 60 -71 (testimony of
the Chief of Occupational Medicine) . He testified only that the appellant was
experiencing difficulty breathing and that she had a pre -existing history of
asthma. Id. Further, the sick leave slip he provided for the appellant merely
states that she suffered “mild exacerbation of pre -existing condition.” RF, Tab 9,
Exhibit 4 at 2. Based on the fact that there was no actual diagnosis of a sthma by
the Chief of Occupational Medicine, we find no error by the administrative judge
in describing the testimony as the appellant having received medical treatment for
an apparent asthma attack.
11
¶20 Additionally, the appellant argues that the administrati ve judge erred by
concluding that the appellant created a hostile work environment “without factual
or legal supporting evidence .” RPFR File, Tab 1 at 7. Specifically, t he appellant
contends that in considering this issue , the administrative judge i mproperly
considered hearsay evidence and employee letters , which were not subject to
cross examination, to find that she created a hostile work environment. Id. We
disagree. The administrative judge made no finding as to whether the appellant
created a hostile work environment. In summarizin g the testimony of the Deputy
Service Chief of the Woodbridge Behavioral Clinic, the administrative judge
stated that the Deputy Service Chief received complaints about the appellant
creating a hostile work environm ent. RID at 13, 23 -25; RF , Tab 11; IAF , Tab 7 at
114-15, Tab 8 at 46, 48, 60 -61, 76. Further, even if this evidence was hearsay, as
the appellant claims, the administrative judge did not err in considering it. See
Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 83-87 (1981) (finding that
relevant hearsay evidence is admissible in Board proceedings and assessment of
its probative value depen ds on the circumstances of each case ).
¶21 Finally, the appellant argues that the administrative judge erred by
concluding that she committed insurance fraud. RPFR File, Tab 1 at 8. Again,
the appellant misstates the findings in the initial decision. Specifically, the
administrative judge found that the evidence established that the appellant was
having significant perf ormance issues and that she engaged in several instances of
miscon duct, including sleeping during appointments, significant reporting
inconsistencies, and misconduct “which could amount to insurance fraud, such as
documenting the length of time she spent treating a patient and documenting
in . . . [the agency healthcare charting system] that she treated a patient who was
hospitalized and she could not have possibly treated.” RID at 25. Thus, while
the administrative judge found that the appellant engaged in several instances of
misconduct, which “could amount to insuran ce fraud ,” the administrative judge
did not find that the appellant “committed insurance fraud .” Id.
12
¶22 Accordingly, because we find that the appellant has failed to prove by
preponderant evidence that her resignation was involuntary , the administrative
judge correctly dismissed this appeal for lack of jurisdiction .
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
14
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 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
15
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of ap peals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | REDMOND_SHEILA_G_DC_0752_15_0578_B_1_FINAL_ORDER_2018009.pdf | 2023-04-04 | null | DC-0752 | NP |
3,322 | https://www.mspb.gov/decisions/nonprecedential/BRUMPTON_ROBERT_SF_0714_18_0035_I_1_FINAL_ORDER_2018130.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT BRUMPTON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0714 -18-0035 -I-1
DATE: April 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant.
Nadine Scott , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT ,” which they signed and dated March 6
and 7, 2023 . PFR File, Tab 4 at 4 -7. 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 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 enfor cement by the Board. PFR File, Tab 4 at 4 -7. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶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 set tlement 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 hav e not
3
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation a nd the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies t o you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 -appoi nted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no c hallenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial revie w either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor wa rrants 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 | BRUMPTON_ROBERT_SF_0714_18_0035_I_1_FINAL_ORDER_2018130.pdf | 2023-04-04 | null | SF-0714 | NP |
3,323 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_MARCUS_DA_0752_18_0335_I_1_FINAL_ORDER_2018175.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARCUS WILLIAMS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -18-0335 -I-1
DATE: April 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marilyn Williams , Cypress, Texas, 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 petitioned for review of the June 5, 2018 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed by the
appellant and his representative on January 24, 2023, and signed by the agency
representative on January 30, 2023. PFR File, Tab 4 at 8. The document
provides, among other things, for the dismissal of the appeal. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement 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 f or 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 enforce ment 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 entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either p arty 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
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 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 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 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 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 protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited pe rsonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or an y court of appeals of
competent jurisdiction.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 with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for infor mation regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain 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
for Merit Systems Protection Board appellants before the 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/CourtW ebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_MARCUS_DA_0752_18_0335_I_1_FINAL_ORDER_2018175.pdf | 2023-04-04 | null | DA-0752 | NP |
3,324 | https://www.mspb.gov/decisions/nonprecedential/FREEMAN_MARY_A_AT_0831_17_0566_I_1_FINAL_ORDER_2017495.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY A. FREEMAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -17-0566 -I-1
DATE: April 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth S. Ratley , Esquire, Augusta, Georgia, for the appellant.
Karla W. Yeakle , 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 Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed OPM’s reconsideration decision finding
that the appellant was ineligible for a deferred retirement annuity under the Civil
Service Retirement System (CSRS) . For the reasons discussed below, we
GRANT OPM’s petition for review , REVERSE the i nitial decision , and AFFIRM
OPM’s reconsideration decision.
BACKGROUND
¶2 The appellant separated from Federal service with the Department of
Veterans Affairs (D VA) effective January 31, 1990. Initial Appeal File (IAF),
Tab 6 at 30 -31. In 1994, she requested and received a refund of h er CSRS
retirement contributions . Id. at 24 -27, 31. In June 2016, the appellant reached
age 62 and applied for a deferred CSRS retirement annuity .3 Id. at 11-16. On
July 7, 2016, OPM issued a decision finding that the appellant was ineligible for
an annuity based on her withdrawal of her CSRS retirement contributions in
1994 . Id. at 10. The appellant requested reconsideration of this decision, id.
at 9, and OPM issued a reconsideration decision on May 10, 2017, whic h affirmed
its initial decision, id. at 6-8.
¶3 The appellant filed an appeal of OPM’s final decision with the Board . IAF,
Tab 1. She initi ally requested a hearing , id. at 4, but subsequently withdrew her
request, IAF, Tab 12 at 1; Tab 15, Initial Decision (ID) at 1. The appellant
asserted that the refund application form did not state that receiving the refund
would void her annuity rights unless she became reemployed and redeposited the
refund. IAF, Tab 14 at 13 (affidavit of the appellant) . The appellant further
3 Although the appellant mistakenly submitted the application form for a deferred
retirement under the Federal Employees Retirement System, IAF, Tab 6 at 11, OPM
processed the form as an application for a deferred retirement under CSRS. Id. at 6, 10.
3
contended that, before she submitted the application, “federal agencies”4 told her
that she could repay the refund with interest if she subsequently decided that she
wanted to receive an annuity ; however , she was not informed that she must be
reemployed to do so.5 Id. The appellant claimed that, had she been informed of
the consequences of obtaining a refund of her retirement contributions , she would
not have requested one. Id. at 13 -14.
¶4 Based on the written record, the administrative judge issued an initial
decision revers ing OPM’s reconsideration decision . ID at 1 , 7. The
administrative judge found that the appellant should be permitted to revoke her
election to withdraw her retirement contributions and redeposit the amount
withdrawn with interest because the election was based upon inadequate and
misleading information that would cause a reasonable person in the appellant’s
situation to be confused. ID at 5-6. Accordingly, the administrative judge
ordered OPM to allow the appellant to revoke her election to withdraw her
retirement contribution s and repay the amount she withdrew with appropriate
interest. ID at 7.
¶5 OPM has filed a petition for review. Petition for Review (PFR) File, Tab 1.
The appellant has filed a response to the petition for review. PFR File, Tab 3.
4 The appellant does not identify these agencies by name but appears to be referring to
OPM and DVA. IAF, Tab 14 at 3.
5 On her Board appeal form and in her request for reconsideration of OPM’s initial
decision, t he appellant provides a s omewhat different account of the information she
received regarding h er eligibility for a deferred retirement annuity. IAF, Tab 1 at 5, 7;
Tab 6 at 9. In those submissions, she state s that she was told that she would be entitled
to a deferred retirement annuity at age 62 without redeposit ing the refund . Id.
4
ANALYSIS
The appellant is not eligible to redeposit her retirement contributions or to
receive deferred annuity benefits.
¶6 An individual seeking retirement benefits bears the burden of proving
entitlement to those benefits by preponderant evidence. Jordan v. Office of
Personnel Management , 100 M.S.P.R. 623, ¶ 7 (2005). It is well settled that the
Government cannot pay benefits to an employee that are not otherwise permitte d
by law. See Office of Personnel Management v. Richmond , 496 U.S. 414 , 416,
434 (1990) ( holding that the Government cannot be estopped from denying
benefits not otherwise pe rmitted by law even if the claimant was denied monetary
benefits because of his reliance on the mistaken advice of a Government official) ;
Danganan v. Office of Personnel Management , 55 M.S.P.R. 265 , 269 (1992)
(holding that, although there was no evidence that the appellant was aware that he
would forfeit any reti rement benefits if he withdrew his retirement contributions,
OPM could not be required to pay the annuity because he did not meet the
statutory requirements) , aff’d , 19 F. 3d 40 (Fed. Cir. 1994) (Table ).
¶7 The administrative judge reversed OPM’s reconsiderati on decision based on
his finding that the appellant satisfied the following standard for determining
whether an election of retirement options is voidable due to incorrect information:
whether a reasonable person would have been confused under the particu lar
circumstances. ID at 5 . For the reasons discussed below, assuming arguendo that
this standard was met here, we nonetheless find that the administrative judge
erred in reversing OPM’s reconsideration decision and ordering OPM to allow the
appellant to revoke her election to withdraw her retirement contributions and to
redeposit her withdrawn funds with interest . ID at 7 .
¶8 In ordering this remedy , the administrative judge relied on cases in which
the Board found that the appellant was entitled to void his election of a retirement
option because he made the election in reliance on err oneous information
provided by G overnment employees. ID at 5 (citing Froom v. Office of Personnel
5
Management , 107 M.S.P.R. 607 (2008) and Cortinas v. Office of Personnel
Management , 32 M.S.P.R. 513 (1987)). Significantly, however, in th ose cases,
the relevant statutory provisions did not prevent the remedia l actio n ordered by
the Board. In Froom , the Board reversed an initial decision and determined that
the appellant was entitled to void his election to make a military service
retirement credit deposit, and to a refund of that deposit, when he reasonably
relied o n erroneous information provided to him by OPM and the Social Security
Administration (SSA) in making a deposit to ensure that he would retain CSRS
service credit for his post -1956 active duty military service. The Board noted
that, contrary to what OPM a nd the SSA advised the appellant, he was entitled to
CSRS credit for his military service without having to make a deposit as a matter
of law, as long as he did not qualify for old -age Social Security benefits when he
became 62 years of age, which under th e facts presented, he did not. The Board
agreed with the appellant that a reasonable person would have been confused by
the erroneous material information OPM and the SSA furnished him, and so the
Board ordered OPM to refund the appellant’s deposit that h e made to retain CSRS
service for his military service .
¶9 Likewise, in Cortinas , the appellant was receiving military retirement pay
when he retired on disability. Cortinas , 32 M.S.P.R. at 514. The appellant
elected to receive a monthly annuity rather than a lump -sum distribution because
his employing agency informed him that his monthly annuity would be based on
his military and civilian service. Id. at 515 -16. In fact, however, 5 U.S.C.
§ 8339 (g), with certain exceptions, excludes credit for military service. Id.
at 514. Consequently, OPM computed the appellant’s annuity based on his length
of civil service and average salary, excluding credit for military service. Id. As a
result, the amou nt of his monthly annuity was more than $300 less than the
estimate provided by his employing agency. Id. at 516.
¶10 On appeal in Cortinas , the appellant acknowledged that OPM’s annuity
calculations were correct, but contended that its decision should be rev ersed and
6
that he should be provided with an opportunity to make an informed decision
regarding available retirement options because his election of retirement options
was based on the incorrect information provided by his employing agency. Id.
at 515. The administrative judge rejected the appellant’s argument and affirmed
OPM’s decision, finding that , even if the appellant was misled or given erroneous
information , an agency cannot be estopped from enforcing the requirements of a
statute. Id. at 514 -15.
¶11 The Board reversed the initial decision and ordered OPM to inform the
appellant of his retirement options and allow him to apply for a change in his
annuity. Cortinas , 32 M.S.P.R. at 516 -17. The Board found th e estoppel issue
relied on by the administrative judge was inapplicable because providing the
appellant equitable relief would not require a waiver or nullification of statutory
provisions. Id. at 516.
¶12 Here, however, the relief ordered by the administrative judge would require
a waiver or nullification of statutory provisions. With exceptions not applicable
in this appeal,6 the receipt of a refund of CSRS retirement contributions voids all
annuity rights based on the service for which the refund is made unt il the
recipient is reemployed by the Federal Government in a covered position and
redeposits the funds previously withdrawn. 5 U.S.C. §§ 8334 (d), 8342(a);
6 There are two statutory exceptions to the general rule that receipt of retirement
contributions voids an interest in the CSRS until reemployment in the Federal service.
ID at 3 -4. The first, 5 U.S.C. § 8343a , provides for alternative forms of annuities to
employees with life -threatening afflictions or other critical medical conditions at the
time of retirement. The second, 5 U.S.C. § 8334 (d)(2), a ddresses annuity -eligible
employees who do not make the deposit required to receive service credit. The
circumstances alleged by the appellant do not fall within the purview of either of these
statutory provisions.
An individual also may avoid the rule that receipt of a refund of retirement
contributions voids annuity rights if she was mentally incompetent when she applied for
the refund. See Yarbrough v. Office of Personnel Management , 770 F.2d 1056 , 1060
(Fed. Cir. 1985). Here, the appellant has not alleged that she was mentally incompetent
when she signed the refund application.
7
Youngblood v. Office of Personnel Manage ment , 108 M.S.P.R. 278 , ¶ 12 (2008).
Thus, an annuitant must be in a current covered Federal position to make a
redeposit of ref unded CSRS credit. 5 U.S.C. § 8334 (d).
¶13 In this case , because the appellant requested and received a refund of her
CSRS retirement contributions, and she is not a current Federal employee making
retirement contributions, she is not entitled to redeposit her withdrawn
contributions or to receive an annuity. See Mahan v. Office of Personnel
Management , 47 M.S.P.R. 639 , 641 -42 (1991) (holding that, because the
appellant requested and received a refu nd of her contributions to the civil service
retirement fund, and she has not been reemployed in a covered position in the
Federal service, any right she had to an annuity was extinguished). In other
words, 5 U.S.C. § 8334 (d) precludes the remedy ordered by the administrative
judge. Accordingly, we reverse the initial decision and sustain OPM’s
reconsideration decision denying the appellant’s request for a deferred retirement
annuity.
NOTICE OF AP PEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
7 Since the issuance of the initial decision in this matter, the Board may have updated
the n otice 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 to your
claims and carefully fol low all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate 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 t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is ap pealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriat e U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
webs ites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportu nity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 C ommission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commissio n
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.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 wh istleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
11
review within 60 days of the date of issuance of this 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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the 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 | FREEMAN_MARY_A_AT_0831_17_0566_I_1_FINAL_ORDER_2017495.pdf | 2023-04-03 | null | AT-0831 | NP |
3,325 | https://www.mspb.gov/decisions/nonprecedential/BOYD_GUY_K_NY_3330_14_0345_I_1_FINAL_ORDER_2017502.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GUY K. BOYD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-3330 -14-0345 -I-1
DATE: April 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nathaniel Watty , Saint Albans, New York, for the appellant.
Kathleen J. Tulloch , 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 appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which granted the appellant’s request
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
for corrective action under the Veterans Employment Opportunities Act of 1998
(VEO A) and dismissed his request for corrective action under the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301 -4335) (USERRA) . For the re asons discussed
below, we DENY the appellant’s petition for review, GRANT the agency’s cross
petition for review, and REVERSE the initial decision regarding the appellant’s
VEOA claim . His request for corrective action under VEOA is DENIED , and his
reques t for corrective action under USERRA is DISMISSED .
BACKGROUND
¶2 The agency advertised to fill a GS-7 Detective position. Initial Appeal File
(IAF), Tab 7, Subtab 4k. The vacancy announcement , filled under merit
promotion procedures, was open to both inter nal and external candidates. Id.
The appellant, an outside candidate who was an agency employee but not an
employee of the hiring healthcare system , was found qualified and placed on the
certificate of eligible s. H e was not interviewed, and the agency selected an
internal candidate for the position. IAF, Tab 7, Subtabs 4b, 4c, 4d, 4f. On
appeal, the appellant challenged his nonselec tion and requested a hearing. IAF,
Tab 1 at 2. In an initial decision based on the written record, the administrative
judge found that the appellant failed to make a nonfrivolous allegation that his
uniformed service was a substantial or motivating factor in his nonselection and
dismissed th e USERRA part of the appeal . IAF, Tab 16, Initial Decision (ID) at
13. However, regarding the VEOA claim , the administrative judge found that the
agency denied the appellant the right to compete unde r 5 U.S.C. § 3304 (f)(1) and
ordered the agency to reconstruct the selection pro cess. ID at 7 -10.
¶3 The appellant has filed a petition for review , and the agency has filed a
cross petition for review. Petition for Review (PFR) File, Tab s 1-2.
3
ANALYSIS
Because the appellant was a curren t Federal employee, he i s not entitled to
correcti ve action for his claim that he was denied an opportunity to compete
under 5 U.S.C. § 3304 (f)(1).
¶4 Section 3304 (f)(1) of Title 5 of the U.S. Code expressly provides preference
eligibles with a right to compete for vacant positions when the agency issuing the
vacancy announcement indicates that it will accept applications from individuals
outside its own workforce. Harellson v. U.S. Postal Service , 113 M.S.P.R. 534 ,
¶ 8 (2010). In its cross petition, the agency argues that it met its obligations by
placing the appellant’s name on the certificate of eligible s, along with other
well-qualified candidates , and that it was not legally required to consider him at
every stage of the selection process, PFR File, Tab 2 at 6, including the interview
stage, id. at 9. However, in Oram v. Department of the Navy , 2022 MSPB 30,
¶ 17, the Board found that , as a matter of law, current Federal employee s are not
entitled to corrective action based on a claim of denial of an opportunity to
compete under 5 U.S.C. § 3304 (f). In reaching that result, the Board relied on the
decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in
Kerner v. Department of the Interior , 778 F.3d 1336 , 1338 -39 (Fed. Cir. 2015) .
There , the co urt found that, because the appellant was already employed in the
Federal civil service, 5 U.S.C. § 3304 (f)(1) was inapplicable in his case. After
reviewing the text and legislative history of VEOA and its precursor, the
Veterans’ Pref erence Act, the Federal Circuit concluded that nothing in the
statutory language, the legislative history, or case law supports a presumption that
section 3304(f)’s “opportunity to compete” provisions apply in instances in which
an applicant already was employed in the Federal civil service , but rather that the
intent of tho se provisions was to assist veterans in obtaining an initial
appointment to the Federal service —not subsequent promotions or other
intra -agency movement . Kerner , 778 F.3d at 1338 . The court continued that ,
because veterans currently employed in a competitive -service position are already
4
“eligible to apply” to merit promotion vacancies, such applicants could not have
been the intended beneficiaries of section 3304(f) . Id.
¶5 Here, it is undisputed that the appellant was a Federal employee at the time
the agency did not select him for the Detective position . IAF, Tab 7,
Subtabs 4f-1, 4h-1; Tab 1 at 1, 3. Therefore, he could not prevail as a matter of
law on his argument that he was denied the opportunity to compete under
5 U.S.C. § 3304 (f). Oram, 2022 MSPB 30 , ¶ 17. For that reason , the
administrative judge ’s finding in the appellant ’s favor was in error,3 and the
initial decision on the VEOA claim must be reversed and the appellant ’s reques t
for corrective action denied.4
The appellant has not shown error in the administrative judge’s dismissal of his
USERRA appeal for lack of jurisdiction.
¶6 On review, the appellant makes a bare allegation that the administrative
judge erred in finding that he did not prove his USERRA claim. PFR File, Tab 1
at 3-4. 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 re cord. Tines v. Department of the Air Force ,
56 M.S.P.R. 90 , 92 (1992). Because the appellant has not explained why he
3 A number of cases the administrative judge relied upon to support his position ,
including Shapley v. Department of Homeland Security , 110 M.S.P.R. 31 (2008),
Styslinger v. Department of the Army , 105 M.S.P.R. 223 (2007), Jolley v. Department of
Homeland Security , 105 M.S.P.R. 104 (2007), and Gingery v. Department of Veterans
Affairs , 114 M.S.P.R. 175 (2010), ID at 6-7, were specifically overruled by the Board in
Oram, 2022 MSPB 30 , ¶ 18, to the extent they are inconsistent with the Federal
Circuit’s holding in Kerner .
4 As noted, the administrative judge did not convene the appellant’s requested hearing.
The Board may decide the merits of an appeal alleging a violation of rights under
VEOA without holding a hearing where there is no genuine dispute of material fact and
one party must prevail as a matter of law. Montgomery v. Department of Health
and Human Services , 123 M.S.P.R. 216 , ¶ 13 (2016); Waters-Lindo v. Department of
Defense , 112 M.S.P.R. 1 , ¶ 5 (2009); 5 C.F.R. § 1208.23 (b). Given our findings
regarding the proper disposition of this appeal, the appellant’s rights were not
prejudiced by the administrative judge ’s failure to convene a hearing regarding the
appellant’s VEOA claim .
5
believes the administrative judge erred and because there is no error apparent on
the face of the initial decision , we find that the appellant ’s bare allegation does
not provide a basis for review.5
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 Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your 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.
5 The appellant contends on review that the administrative judge took 2 years to issue
his initial decision. However, t he appellant has not shown how this error adversely
affected his substantive rights. Karapinka v. Department of Energy , 6 M.S.P.R. 124 ,
127 (1 981).
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.
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 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
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, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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.7 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 addr ess:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All C ircuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided 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 | BOYD_GUY_K_NY_3330_14_0345_I_1_FINAL_ORDER_2017502.pdf | 2023-04-03 | null | NY-3330 | NP |
3,326 | https://www.mspb.gov/decisions/nonprecedential/MAYO_SHERRY_A_AT_0752_15_0786_I_1_FINAL_ORDER_2017551.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERRY A. MAYO,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -15-0786 -I-1
DATE: April 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sherry A. Mayo , Pensacola, Florida, pro se.
Jennifer Demming , Pensacola, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has file d a petition for review of the initial decision, which
dismissed her reduction -in-pay appeal for lack of jurisdiction. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
decision 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, w as not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 The appellant, a GS -7 Supervisory Training Technician , filed an appeal in
which she alleged that , on August 9, 2015, under the guise of a promotion, t he
agency involuntarily and without notification subjected h er to a reduc tion in pay
when it reduced her basic pay . Initial Appeal File (IAF), Tab 1 at 5. She claimed
that the agency improperly classified h er position in 2005 and that its action s
were in retaliation for h er having filed equal employment opportunity (EEO)
complaints against the agency over a number of years . Id. She requested a
hearing.3 Id. at 2.
¶3 In response, the agency moved that the appeal be dismissed for lack of
jurisdiction. IAF, Tab 5. The agency argued that on September 26, 2010, the
appellant transitioned out of the National Security Personnel System (NSPS) to
her current position but as a GS -6 with retained pay and therefore no localit y pay ,
id. at 9; that on August 9, 2015, he r position was reclassified as a GS -7, and she
was placed at step 9 with locality pay, id. at 8; and that her salary increased by
3 During adjudica tion, the appellant withdrew her request for a hearing and asked that
the appeal be decided on the written record. IAF, Tab 17.
3
more than $6,000 , id., such that she did not , in fact, suffer a reduction in pay, id.
at 4. On November 5, 2015, d uring adjudication of the appeal, the agency issued
a corrected S tandard Form 50 (SF -50) adjust ing the appellant’s salary , effective
August 9, 2015, from GS-7, step 9 , to step 8, resulting in a decrease in both her
basic pay and her locality pay in an amount totaling $1,319 . IAF, Tab 15 at 11 .
The appellant also chall enged this action as a reduction in basic pay and in total
salary. IAF, Tab 23. The adminis trative judge issued a close -of-record order
setting forth in thorough fashion the means by which the appellant could establish
that either or both of the agency’s actions constituted a reduction in pay. IAF,
Tab 22.
¶4 Following receipt of the parties’ close -of-record submissions,4 IAF,
Tabs 24-29, 35 -37, the administ rative judge issued an initial decision dismissing
the appeal for lack of jurisdiction, IAF, Tab 39, Initial Decision (ID) at 1, 9.
Based on the evidence of record, including a declaration under penalty of perjury
from the Human Resources (HR) Assistant w ho processed the actions at issue,
IAF, Tab 29 at 9-11, the administrative judge found that: (1) when the appellant
transitioned out of the NSPS, she returned to her pre -NSPS grade of GS -6;
(2) because her NSPS rate of pay ($47,441) exceeded the GS -6, ste p 10, rate
($45,376), she was entitled to pay retention (at $47,441) but no additional locality
pay, IAF, Tab 5 at 9 ; (3) she received g eneral pay increases in January 2014
($226) and in January 2015 ($233) , bringing her adjusted basic pay to $47,900,
still with no locality pay , IAF, Tab 15 at 7 ; (4) when the agency promoted her on
August 9, 2015, based on the reclassification of her position to the GS -7 level,
she was placed at step 9 , which the HR Assistant erroneously believed to be in
4 In her close -of-record submission, the appellant raised a claim of retaliation for
whistleblowing. IAF, Tab 24 at 8, 12, 19.
4
accordance with 5 U.S.C. § 53345 and Office of Personnel Management (OPM)
regulations ( 5 C.F.R. §§ 531.214 (d), 536.308(a)(2)) ; and (5) the appel lant’s basic
pay ($43,902) and locality pay ($6, 217) provided her an adjusted basic pay rate of
$50,119, IAF, Tab 5 at 8; ID at 4 -6. The administrative judge found that the
agency correctly followed OPM’s regulations when it determined that the
appellant was no longer entitled to pay retention and would be paid in accordance
with the GS -7 grade , ID at 7 , and that, because locality pay is part of basic pay
for purposes of setting the appellant’s pay under 5 C.F.R. § 531.203 , her pay
increased rather than decreased on August 9, 2015, when her position was
reclassified at the GS -7 level, ID at 8 -9. The administrative judge then address ed
the appellant’s claim that the agency improperly reduc ed her pay on November 5,
2015 , when it changed her from GS -7, step 9 ($50,119) , to GS -7, step 8
($48,800) , but the administrative judge found that, in so doing, the agency was
correcting a pay -setting error,6 a matter not within the Board’s jurisdiction. IAF,
Tab 29 at 11; ID at 8. In the absence of Board jurisdiction, the administrative
judge found no basis upon which to consider the appellant’s affirmative defenses.
ID at 8 -9.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agenc y has responded in opposition, PFR File, Tab 3.
¶6 On review, the appellant argues , as she did below, that she suffered a
reduction in pay when she was promoted to GS -7 because her GS-6 salary was
$47,900, whereas her basic pay a t the GS-7 level was $43,902. PFR File, Tab 1
at 6. A reduction in an employee’s rate of basic pay is appealable to the Board.
5 U.S.C. §§ 7512 (4), 7513(d). As the administrative judge found, while 5 C.F.R.
5 That section provides that an employee who is promoted is entitled to basic pay at the
lowest rate of the higher grade which exceeds her existing rate of basic pay by not less
than tw o step increases of the grade from which she is promoted.
6 The appellant was only entitled to the “lowest step rate in the range that equals or
exceeds the retained rate.” 5 C.F.R. § 531.2 14(d)(5).
5
§ 752.402 defines “pay” for purposes of 5 U.S.C. chapter 75 as the rate of pay
before any deductions and exclusive of additional pay of any kind, “rate of basic
pay” in the context of grade and pay retention specifically includes locality pay .
5 U.S.C. § 5361(4)(A)(i); 5 C.F. R. §§ 531.203 , 536.103 ; ID at 4. Because the
appellant in this case was being taken off retained pay to be paid under the
General Schedule, we agree with the administrative judge that it was proper for
the agency to follow 5 C.F.R. §§ 531.203 and 536.103 , that th e appellant’s rate of
basic pay after her promotion including her locality pay was $50,119 , and that she
was not subject to a reduction in pay . Kile v. Department of the Air F orce ,
104 M.S.P.R. 49 , ¶¶ 14-17 (2006).
¶7 The appellant also argues on review that her position was improperly
classified in 2005, in 2008 when she was transitioned into the NSPS, and again in
2010 when she transitioned back into the General Schedule. PFR File, Tab 1 at 7.
The administrative judge also considered this, the appellant’s challenge to the
agency’s classification of her po sition, but found that the Board lacks jurisdiction
over such a claim. ID at 7 n.8. The appellant has not shown error in this finding.
Saunders v. Merit Systems Protection Board , 757 F.2d 1288 , 1290 (Fed. Cir.
1985); Vercelli v. U.S. Postal Service , 70 M.S.P.R. 322, 328 (1996) ( finding that
the Board lacks jurisdiction over cases concerning the proper classification of a
position or related issues). Further, t he Board’s lack of jurisdiction over
classification issues precludes consideration of the appellant’s reliance on
guidance of the Government Accountability Office to support her claim that she
was performing at the GS -7 level years before her promotion. PFR File, Tab 1
at 17-18.
¶8 The appellant argues on review , moreover, that her reduction in pay
violated section 1113(c)(1) of the National Defense Authorization Act for Fiscal
6
Year 2010 ,7 which provided that no employee would suffer a loss of or decrease
in pay upon transition from the NSPS to a non -NSPS personnel or pay system.
Id. at 9-10, 13-14. However, we have found no reduction in pay over which the
Board would have jurisdiction, and the appellant has failed to set forth any other
basis for the Board to review h er claim.
¶9 On review, the appellant renews h er claim that the age ncy’s actions were
based on retaliation for filing EEO complaints. Id. at 7. It is well established,
however, that prohibi ted personnel practices under 5 U.S.C. § 2302 (b) are not an
independent s ource of Board jurisdiction.8 Wren v. Department of the Army ,
2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982).
¶10 Finally, t he appellant argues on review that the agency denied her 2.5 hours
of official time to participate in a teleconfere nce and instead charged her
2.5 hours of annual leave. PFR File, Tab 1 at 18. The appellant has not pointed
to any law, rule, or regulation giving the Board jurisdiction, under the
circumstances of this case, to review this claim, and we are aware of none. See
Marler v. Department of Vet erans Affairs , 58 M.S.P.R. 116, 123 n.6 (1993).
7 This Act, signed by th e President on October 28, 2009 , repealed the NSPS and called
for the conversion of all employees and positions back to their former pay system.
Arrington v. Department of the Navy , 117 M.S.P.R. 301, ¶ 4 (2012).
8 The appellant did not, in her petition for review, renew her claim that the agency’s
actions were in retaliation for her whistleblowing activity. PFR File, Tab 1.
Nonetheless, we must modify the reasoning for the administrative judge’s dismissal of
that claim for lack of jurisdiction because, a lthough it could be construed as a basis for
an individual right of action (IRA) appeal, the appellant has failed to show that she first
exhausted her remedy before the Office of Special Counsel (OSC). Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) (the Board has
jurisdiction over an IRA appeal if the appellant has exhausted his administrative
remedies before OSC and makes nonf rivolous allegations that: (1) he engaged in
whistleblowing activity by making a protected disclosure, and (2) the disclosure was a
contributing factor in the agency's decision to take or fail to take a personnel action).
7
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
about whether a particular 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:
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 a ny matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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
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 mu st file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be en titled to representation by a court -appointed lawyer and
9
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdict ion.
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
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MAYO_SHERRY_A_AT_0752_15_0786_I_1_FINAL_ORDER_2017551.pdf | 2023-04-03 | null | AT-0752 | NP |
3,327 | https://www.mspb.gov/decisions/nonprecedential/KUCZAJDA_AMY_A_SF_1221_17_0426_W_1_FINAL_ORDER_2017619.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMY A. KUCZAJDA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -17-0426 -W-1
DATE: April 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul Richardson , Boise, Idaho, for the appellant.
Briana Buban , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action . On petition for review, the appellant
argues she should have been reached for promotion on the certificate of eligible s,
that the administrative judge improperly denied one of her witness es at 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
hearing, and th at, under some circumstances, reissuing a vacancy announcement
is a personnel action . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings durin g either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
clarify that t he administrative judge properly found that the appellant exhausted
her administrative remedies ,2 we AFFIRM the initial decision .3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supp lemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
2 Although the appellant filed her whistleblower complaint s with the Office of Special
Counsel (OSC) before her nonselection for promotion , based on her supplemental
submissions to OSC, the administrative judge properly found that the appellant proved
by preponderant evidence that she exhausted her admi nistrative remedies regarding her
allegation that the agency did not select her in reprisal for her protected disclos ures and
protect ed activity . See Mitchell v. Department of the Treasury , 68 M.S.P.R. 504 , 511
(1995) (finding that the Board will consider supplements to an OSC c omplaint when
addressing exhaustion ).
3 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a stateme nt of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirement s. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board ord er must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a 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 particular
4
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representat ion in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in who le or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, r eligion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx .
5
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices d escribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
6
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 Appeal s for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision 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/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KUCZAJDA_AMY_A_SF_1221_17_0426_W_1_FINAL_ORDER_2017619.pdf | 2023-04-03 | null | SF-1221 | NP |
3,328 | https://www.mspb.gov/decisions/nonprecedential/KIRBY_PAULA_DC_0752_17_0797_I_1_FINAL_ORDER_2017657.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAULA KIRBY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -17-0797 -I-1
DATE: April 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paula Kirby , Winston Salem, North Carol ina, pro se.
Brandy A. Osimokun , Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her suspension ap peal for lack of jurisdiction because she failed to
nonfrivolously allege that she is a preference eligible, supervisor, manager, or
confidential employee entitled to appeal an adverse action to the Board . On
petition for review, the appellant makes vario us arguments concerning the merits
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinio n and Order 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 the agency’s actions and alleges that it engaged in unfair labor practice s and
violated policies , procedures, and the union contract in placing her in a nonpay
status. Petition for Review (PFR) File, Tab 1 at 4.2 Such arguments, however,
are not relevant to the jurisdictional issue in this appeal and, thus, fail to show
any error in the initial decision. See Saunders v. Department of Justice ,
95 M.S.P.R. 38 , ¶ 10 (2003); Kennedy v. National Aeronautics and Space
Administration , 84 M.S.P.R. 103 , ¶ 3 n. 1 (1999). 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 o f statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regul ations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
2 In her petition for review, the appellant also indicat es that she submitted to the Board
various supporting documents, which were not submitted below, including a Step 1 and
Step 2 gr ievance, two statements, a n “SP50,” and a n “LOR.” PFR File, Tab 1 at 1 , 3.
However, the Board does not have a record of recei ving any of these documents on
review . The record below includes a copy of a St ep 1 and Step 2 grievance and a P ostal
Service Form 50, Initial Appeal File, Tab 7, which we have considered, but find do not
establish any error in the initial decision.
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 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 whic h option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immedia tely review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to th e 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.ca fc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board nei ther endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your repr esentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requ irement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excludin g
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S. C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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
dispositio n of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Ap peals 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 Ma dison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will ac cept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Revi ew 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://w ww.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KIRBY_PAULA_DC_0752_17_0797_I_1_FINAL_ORDER_2017657.pdf | 2023-04-03 | null | DC-0752 | NP |
3,329 | https://www.mspb.gov/decisions/nonprecedential/CAMPBELL_BENJAMIN_E_AT_0752_15_0019_X_1_FINAL_ORDER_2017699.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BENJAMIN E. CAMPBELL ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -15-0019 -X-1
DATE: April 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher W. Waters , Birmingham, Alabama, for the appellant.
Eric B. Fryda , Esquire, Dallas, Texas, for the agency.
Margaret L. Baskette , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonp recedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identi fied 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
¶1 In a July 24, 2017 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s final decision in the
underlying appeal . Campbell v. U.S. Postal Service , MSPB Docket No. AT -0752 -
15-0019 -C-1, Comp liance File (CF) , Tab 12, Compliance Initial Decision (CID).
For the reasons discussed below, we now find the agency in compliance and
DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In a September 9 , 2016 Final Order, the Board mitigated the appellant’s
removal to a 30 -day suspension and ordered the agency to provide him back pay
with interest and benefits . Campbell v. U.S. Postal Service , MSPB Docket
No. AT-0752 -15-0019 -I-1, Final Order (Sept. 9, 2016); Petition for Review File,
Tab 8. On November 15, 2016, the appellant petitioned for enforcement of the
Board’s final order. CF, Tab s 1, 4, 6 . In the complia nce initial decision , the
administrative judge found the agency in partial noncompliance with the Board’s
final order to the extent it placed the appellant in leave without pay (LWOP)
status during the interim relief period. CID at 7. Accordingly, the administrative
judge granted the appellant’s petition for enforcement and ordered the agency to
pay him back pay with interest for time he was in LWOP status , from March 25
through September 9, 2016, and to provide him an explanation of its back pay and
restored leave calculations. CID at 8.
¶3 On August 28, 2017, the agency informed the Board that it had taken the
actions identified in the compliance initial decision.3 Campbell v. U.S. Postal
3 In the compliance initial decision , the administrative judge informed the agency that,
if it decided to take the actions required by the decision, it must submit to the Clerk of
the Board , within the time limit for filing a petition for review under 5 C.F.R.
§ 1201.114 (e), a statement that it ha d taken the actions identified in the compliance
initial decision, along with evidence establishing that it has taken those actions. CID
at 9-10; 5 C.F.R. § 1201.183 (a)(6)(i). She also informed the parties that, to request
review of the compliance initial decis ion by the full Board, they must file a petition for
review no later than August 28, 2017 , the date on which the compliance initial decision
would become final unless a petition for review was filed . Id.; see 5 C.F.R.
3
Service , MSPB Docket No. AT -0752 -15-0019 -X-1, Compliance Referral File
(CRF), Ta b 1. After reviewing the parties ’ compliance submissions and their
responses to three orders seeking additional information , the Board issued a
May 16, 2022 non-final Order finding the agency in compliance with its
obligation to provide the appellant an accounting of the back pay owed to him and
adopting the ag ency’s back pay calculations . CRF, Tab 13, Order , ¶ 11.
However , the Board found that the appellant’s failure to complete , sign, and
return to the agency Postal Service Form 3083 precluded the agency from
processing his back pay award. Id., ¶ 12. Although the Board may deny a
petition for enforcement when, as here, an appellant fails to cooperate with an
agency’s effort to achieve compliance, the Board instead granted the agency’s
request to order a lump sum back pay award , which would allow it to process the
back pay award without any further action on the appellant’s part. Id.
Accordingly, the Board ordered the agency to pay the appellant a lump sum back
pay award of $6,637.53 to compensate him for the 230.63 hours for which he was
improperly pl aced on LWOP , plus interest through August 24, 2017 . Id.,
¶¶ 12-13. The Board ordered the agency to provide evidence that it had
completed this action and informed the appellant of his right to respond to the
agency’s submission, cautioning him that the Board may assume he was satisfied
and dismiss his petition for enforcement if he did not respond. Id., ¶¶ 13-14.
¶4 On June 23, 2022, the agency submitted evidence reflecting that it had
completed the paperwork for payment of the lump sum back pay award and had
requested issuance of a check to the appellant in the amount of $6,637.53 plus
interest for the period from January 14, 2014, through August 24, 2017. CRF,
Tab 15. On August 2, 2022, the agency submitted additional evidence reflecting
that it had received and forwarded to the appellant a check for $4,337.62 , which
§§ 1201.114 (e), 1201.183(a)(6)(ii). Neither party filed a petition for review of the
compliance initial decision.
4
represented the lump sum back pay award of $6,637.53 minus deductions of
$2,200.91 for Social Security, Medicare, and state and Federal taxes , and a check
for interest in the amount of $871. 95. CRF, Tab 16 at 4-10. The agency’s
submission also reflected that the checks were delivered to the appellant on
August 2, 2022. Id. The appellant did not respond to either of the agency’s
submissions.
ANALYSIS
¶5 When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation he would have been in had the
wrongful personnel action not occurred. Vaughan v. Department of Agriculture ,
116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116 ,
¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir. 2006). The agency
bears the burden to prove compliance with the Board ’s order by a preponderance
of the evidence.4 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R. § 1201.183 (d). An
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.
¶6 As noted above, the only outstanding compliance issue in this appeal is the
agency’s obligation to pay the appellant a lump sum back pay award in the
amount of $6,637.53 plus interest. The agency’s evidence reflects that it has now
done so , CRF, Tabs 15 -16, and the appellant has not responded to or challenged
this evidence . Accordingly, we assume that the ap pellant is satisfied. See
4 A preponderance of the evidence is the degree of relevant evid ence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R.
86, ¶ 9 (2009).
¶7 In ligh t of the foregoing, we find that the agency is now in compliance and
dismiss the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE 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 reason able 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 f ees 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 rig hts, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdi ction. If you wish to seek review of this final decision, you should
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dis missal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action 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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must 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
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 | CAMPBELL_BENJAMIN_E_AT_0752_15_0019_X_1_FINAL_ORDER_2017699.pdf | 2023-04-03 | null | AT-0752 | NP |
3,330 | https://www.mspb.gov/decisions/nonprecedential/HENRY_KEYNO_I_AT_0752_16_0632_I_1_FINAL_ORDER_2017166.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEYNO I. HENRY,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -16-0632 -I-1
DATE: March 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marion L. Williams , Warner Robins, Georgia, for the appellant.
Gregory Lloyd , Esquire, Robins A ir Force Base, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Membe r1
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
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).
1 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 of
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 served at the agency’s Robins Air Force Base as an Aircraft
Overhaul Systems Mechanic , a testing designated position (TDP) for which
employees are subject to random drug testing as a condition of employment.
Initial Appeal File (IAF), Tab 1, Tab 4 at 40 -42. He tested positive for marijuana
in a random test , and the agen cy proposed his removal. IAF, T ab 4 at 32-33.
After considering his response, the agency removed the appellant effective July 1,
2016. Id. at 11, 15.
¶3 The appellant appealed his removal, stipulating that he engaged in the
charged conduct, i.e., testing positive for an illegal drug, and arguing that the
agency violated his due proc ess rights and punished him more severely than other
similarly situated employees. IAF, Tabs 1, 11 at 12-15, 12. After holding a
hearing, the administrative judge issued an initial decision that affirmed the
appellant’s removal, finding no dispute regard ing the charge d misconduct and
determining that the agency established a nexus between that misconduct and the
3
efficiency of the service. IAF, T ab 15, Initial Decision (ID) at 2 -3. He further
found, based on the testimony before him, that the deciding of ficial had
considered the relevant Douglas factors and that the penalty of removal was
reasonable u nder the circumstances . ID at 3 -4. The administrative judge found
that the appellant failed to establish that the agency treated similarly situated
employe es more favorably or violated his right to due process . ID at 4 -6. He
also rejected the appellant’s claim that the agency commit ted harmful error in the
application of its own procedures , finding that the agency retained the discretion
to remove the appellant for a positive drug test notwithstanding his subsequent
participation in rehabilitative treatment. ID at 6 -8.
¶4 In his petition for review, the appellant challenges the administrative
judge’s findings regard ing nexus and the reasonableness of the penalty. Petition
for Review (PFR) File, Tab 1. He argues that the deciding official had no
personal knowledge of him save for the documents relied upon by the agency to
remove him. Id. at 6. By contrast, the appellant argues that the management
officials with firsthand knowledge of him at work , i.e., his first - and second -level
supervisors, wrote letters expressing their trust and confidence in both him and
his performance. Id.; IAF, Tab 4 at 30 -31. He also challenges the deciding
official’s determination that he lacked rehabilitative potential because he did not
seek treatment before testing positive, questioning whether the agency gave him
notice of its rehabilitation requirements . PFR File, Tab 1 at 6. The appellant also
contests the deciding official’s testimony that he self -certified all his work. Id.
Lastly, he argues that his removal was not based on his misconduct, but instead
was based on his wife’s career as an undercover agent in the base’s Office of
Special Investigation (OSI) , asserting for the first time that the agency removed
him “under the Cat’s Paw Theory ” in reprisal for the alleged belief of his
“coworkers and some manager” that he had provided the information that OSI
used in conducting drug raids on individuals in his organization . Id at 7. The
4
agency responds in opposition to the appellant’s petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Because the appellant stipulated to the charge, conceding that he test ed
positive for marijuana in a required random drug test , the only issues in this
appeal are whether the agency established a nexus between the appellant’s
misconduct and the efficiency of the service, whether the agency established the
reasonableness of t he penalty, and whether the appellant established his
affirmative defenses. IAF, Tab 12; see Cole v. Department of the Air Force ,
120 M.S.P.R. 640 , ¶ 9 (2014) (findi ng that an admission of misconduct is
sufficient to prove a charge).
The agency established nexus.
¶6 Concerning nexus, because the appellant occupied a TDP and his
responsibilities repairing aircraft s directly related to the safety of others , we
agree with the administrative judge that the agency established the requisite nexus
between the sustained misconduct and the efficiency of the service . ID at 2 -3;
see, e.g., Holton v. Department of the Navy , 884 F.3d 1142 , 1143-44 (Fed. Cir.
2018) (upholding the removal for a n employee’s positive drug test w hose
responsibilities included ensuring the safety of his subordinate s along with the
vessel s and structures at the Navy Yard during crane operations); Scott v.
Department of Transportation , 45 M.S.P.R. 639 , 644 (1990) (finding that the
responsibility of an air traffic controller for the safety of others pro vided a clear
nexus between off -duty drug use and the efficiency of the service). Contrary to
the appellant’ s assertions on review, the favorable commen ts of his immediate
supervisors do not ch ange the fact that he occupied a TDP and stipulated to the
fact that he tested positive for marijuana. PFR File, Tab 1 at 5 -6. As the
following discussion indicates, we also agree that the penalty is within the bo unds
of reasonable ness.
5
The penalty is reasonable.
¶7 When, as here, the agency’ s charge is sustained, the Board will modify an
agency -imposed penalty only when it finds that the agency failed to weigh the
relevant factors under Douglas v. Veterans Administration , 5 M.S.P.R. 280 ,
305-06 (1981), or the penalty imposed clearly exceeded the bounds of
reasonableness. Cole , 120 M.S.P.R. 640 , ¶ 14. It is not the Board’ s role to
decide what penalty it would impose but, rather, whether the penalty selected by
the agency exceeded the maximum reasonable penalty. Adam v. U.S. Postal
Service , 96 M.S.P.R. 492 , ¶ 7 (2004), aff’d, 137 F. App’x 352 (Fed. Cir. 2005)
(Table) . 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 offens e
was intentional or was frequently repeated. Singletary v. Department of the Air
Force , 94 M.S.P.R. 553 , ¶ 12 (2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004).
¶8 The appellant argues on review that the deciding official failed to consider
all of the relevant Douglas factors, basing his decision solely on the first Douglas
factor—the nature and seriousness of the offense. PFR Fil e, Tab 1 at 6. He also
challenges the deciding official’s testimony that he lacked rehabilitative potential.
Id. Although t he administrative judge found that the deciding official
prominently and properly emphasized the nature and severity of the offense, we
note that , contrary to the appellant’s contention on review, the administrative
judge also considered several mitigating factors , i.e., the appellant’s 10 ye ars of
Federal civilian service, his satisfactory performance and lack of prior discipl ine,
the positive character references from his immediate supervisors, and the pressure
he felt as a result of his wife’s employment with OSI. ID at 4. Nevertheless, the
administrative judge noted that the deciding official found that these mitigating
factors failed to outweigh the nature and severity of the appellant’ s offense and
concluded that the penalty of removal was within the bounds of reasonableness.
Id. We agree with the administrative judge’s analysis.
6
¶9 Pertaining to the appellant’s disparat e penalty claim, the administrative
judge noted the appellant’s failure to produce any documentary evidence in
support of it. ID at 5. The agency identified three comparators in its prehearing
submission , and the evidence indicates that all thr ee were re moved. IAF, Tab 9
at 215-19. The administrative judge cited the testimony of the deciding official
that he had sustained the removal of many employees who tested positive for
illegal drugs, including four in the past year, and that one of those cases was
resolved through a last chance settlement agreement. ID at 4-5. E mployees
whose discipline was reduced as part of last chance settlement agreement s are not
valid comparators. See Dick v. U.S. Postal Service , 52 M.S.P.R. 322 , 325, aff’d ,
975 F.2d 869 (Fed. Cir. 1992) (Table) . Given the appellant’s lack of evidence, he
has failed to meet his burden to identify evidence that could lead a reasonable
person to conclude that the agency treated similarly situated employees
differently, and we agree with the administrative judge tha t the appellant failed to
establish his disparate penalty claim. ID at 4.
¶10 The Board consistently has held that removal is a reasonable penalty for
drug use when the employee performs work that, if the employee were impaired,
could result in substantial danger to life and property, notwithstanding other
mitigating factors. E.g., Holton , 884 F.3d at 1142, 11 43-44; Patterson v.
Department of the Air Force , 77 M.S.P.R. 557 , 563 -64, aff’d, 168 F.3d 1322 (Fed.
Cir. 1998) (Table); Thomas v. Department of the Air Force , 67 M.S.P.R. 79 , 83
(finding that removal for a first offense was appropriate for a journeyman aircraft
mechanic, considering that a mistake could result in the loss of both an aircraft
and its crew ), aff’d, 66 F.3d 346 (Fed. Cir. 1995) (Table)
¶11 The administrative judge credited the deciding official’s testimony that the
duties of the appellant’s Aircraft Overhaul Systems Mechanic position similarly
involved the safety of pilots, other personnel, and agency property. ID at 3. The
appellant does n ot challenge this finding and instead asserts that, contrary to the
testimony of the deciding official, he did not self -certify his work, such that no
7
task on an aircraft would be certified as complete without at least two other
individuals reviewing it to ensure it was done correctly. PFR File, Tab 1 at 6 -7.
He includes a document regarding such secondary certification with his petition
for review . Id. at 11 -12.
¶12 However, the appellant did not raise this argument below , nor did he submit
the document . Id. Under 5 C.F.R. § 1201.115 (d), the Board generally will not
consider evidence submitted for the first time with the petition for review absent
a showing that it was unavailable befo re 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). The
document is dated May 6, 2016, which was before the close of the record below ,
5 C.F.R. § 1201.59 (a), and the appellant does not assert that it was unavailable
before that time despite his due diligence. Moreover, even if we were to consider
the document on review , it does not establish that e very critical task was subject
to secondary certification, instead setting forth several example s when secondary
certification may not apply , such that a task , by nec essity, would be self -certified.
PFR File, Tab 1 at 12. Nevertheless , even under circumstances when the record
reflects that an aircraft mechanic occupying a TDP may not actually be
performing the full range of his duties at the time of a positive drug t est, the
Board has found that the use of illegal drugs under such circumstances presents a
substantial safety risk justifying removal. Patterson , 77 M.S.P.R. at 563 . Thus,
removal is a reasonable penalty under the circumstances presented.
The appellant failed to establish his affirmative defenses.
¶13 The appellant failed to provide any evidence to support his allegation that
the agency violated his right to due process . ID at 5 -6. An agency’ s failure to
provide a tenured public employee with an opportunity to present a response,
either in person or in writing, to an appealable agency action that deprives him of
his property right in his employment constitutes an abridgement of his
constitutional right to minimum due process of law, i.e., prior no tice and an
opportunity to respond . Cleveland Board of Education v. Loudermill , 470 U.S.
8
532, 546 (1985). Additionally, procedural due process guarantees are not met if
the employee has notice of only certain charges or portions of the evidence and
the deciding official considers new and material information; therefore, it is
constitutionally impermissible to allow a deciding official to receive additional
material information that may undermine the objectivity required to protect the
fairness of the process. E.g., Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368 , 1376 (Fed. Cir. 1999). The administrative judge found that the
appellant failed to assert that the agency did not give him proper notice of the
charges, an explanation of the evidence, or an opportunity to respond , and he
similarly failed to allege that the deciding official relied upon new and material
ex parte information as a basis for his decision on the merits of the charge or the
penalty to be imposed. ID at 6. Thus, we agree that the appellant failed to
establish that the agency denied him due process.
¶14 Concerning t he appellant’s argument that the agency committed harmful
procedural error by failing to follow its internal policy regarding rehabilitation
for illegal drug use, the administrative judge found that the memorandum of
understanding (MOU) on that subject that the appellant alleged the agency
violated did not prevent the agency from taking disciplinary action against an
employee in a TDP who tests positive for drugs . ID at 6-7. Harmful error under
5 U.S.C. § 7701 (c)(2)(A) cannot be presumed; an agency error is harmful only
when the record shows that the procedural error was likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 , 681, 685 (1991). Because the MOU neither precluded the
agency from taking disciplinary action against the appellant during his
rehabilitation nor requ ired it to return him to duty status following rehabilitation,
we agree with the administrative judge that the appellant failed to demonstrate
that the agency committed an error in its procedures , much less one that would
9
have caused it to reach a differen t conclusion in the absence or cure of the error.
ID at 6 -7; see 5 C.F.R. § 1201.4 (r).
¶15 Finally , we address the appellant’s allegations that his removal was based
on his wife’s career as an undercover agent of the agency’s OSI. PFR File, Tab 1
at 7. As noted above, the appellant argues for the first time on review that the
agency removed him “ under the Cat’s Paw Theory ” due to the belief of “his
coworkers and some manager” that he had s upplied OSI with information that it
used to conduct raids on his workplace . Id. The U.S. Supreme Court has adopted
the term “cat’ s paw” to describe a case in which a particular management official,
acting because of an improper animus, influences an other agency official who is
unaware of the improper animus when imp lementing a personnel action. Dorney
v. Department of the Army , 117 M.S.P.R. 480 , ¶ 11 (2012) (citing Staub v.
Proctor Hospital , 562 U.S. 411 , 415-16 (2011)). On review, however, the
appellant does not offer any evidence to support his contention that any
individuals with improper motives influenced the officials who took this action
against him. Nevertheless, a lthough the appellant alleged below that the stress of
his wife’s career factored into his drug and alcohol abuse —something that the
deciding official considered as a mitigating factor —ID at 4, he did not argue that
agency officials had removed him in reprisal for their belief that he had given his
wife information that led to his coworkers being arr ested or charged in raids that
OSI made on the appellant’s workplace. As stated above, u nder 5 C.F.R.
§ 1201.115 (d), the Board generally will not consider evidence submitted for the
first time on review absent a showing that it was unavailable before the reco rd
was closed despite the party’ s due diligence. Avansino , 3 M.S.P.R. at 214 . The
appellant makes no such showing here .
¶16 Acco rdingl y, we deny the petition for review .
10
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 d oes not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of thi s final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact tha t forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 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.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is avail able at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in secur ing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option appli es to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 cas e, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, co lor, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
12
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district court s can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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 representative receives this decision before you do, then 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
13
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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
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 | HENRY_KEYNO_I_AT_0752_16_0632_I_1_FINAL_ORDER_2017166.pdf | 2023-03-31 | null | AT-0752 | NP |
3,331 | https://www.mspb.gov/decisions/nonprecedential/HIGHTOWER_SELINA_DC_1221_17_0654_W_1_FINAL_ORDER_2017179.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SELINA HIGHTOWER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -17-0654 -W-1
DATE: March 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Early Kenan , Graham, North Carolina, for the appellant.
Heather A. Pepin and Kay Peterson , Fort Bragg, North Carolina, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal for lack of jurisdiction . On
petition for review, the appellant argues that she timely filed her appeal and that
she timely responded to the administrative judge’s orders. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 app lication 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 affecte d the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition fo r review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision.2 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to fi le. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate fo r your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 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.
3 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address :
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appe als for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provi ded 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 act ion that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 any such request with the
EEOC’s Office of Federal Op erations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, t hen you must file
with the EEOC no later than 30 calendar days after your representative 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 Employ ment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opp ortunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 iss uance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | HIGHTOWER_SELINA_DC_1221_17_0654_W_1_FINAL_ORDER_2017179.pdf | 2023-03-31 | null | DC-1221 | NP |
3,332 | https://www.mspb.gov/decisions/nonprecedential/JOSEPH_CHRISTOPHER_M_NY_0752_17_0019_I_1_FINAL_ORDER_2017271.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER M. JOSEP H,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -17-0019 -I-1
DATE: March 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher M. Joseph , Central Islip, New York, pro se.
Michael J. Berger , Esquire, Brooklyn, New York, for the agency.
Steven A. Snyder , Northport, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation and within -grade increase (WIGI)
denial appeal for lack of jurisdiction . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings 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 result ing 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 f or review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
DISCUSSION OF ARGUME NTS ON RE VIEW
¶2 The appellant filed an appeal alleging that his resignation was involuntary
and that the agency improperly denied him a WIGI . Initial Appeal File (IAF),
Tab 1 at 5. He also asserted that he was discriminated against and harassed by
his supervisor , and he included a copy of a September 29, 2016 notice proposing
his r emoval for unacceptable p erformance . Id. at 7, 10 -14. Becau se it appeared
that the Board might not have jurisdiction over his appeal, the administrative
judge ordered the appellant to su bmit evidence and argument establishing a
nonfrivolous allegation of jurisdiction. IAF, Tab 4. The administrative judge
3
also scheduled a telephonic status conference. IAF, Tab 5. The appellant did
not f ile a response or appear for the conference.
¶3 Thereafter, the administrative judge issued an initial decision , finding that
the appellant failed to make a nonfrivolous allegation of jurisdiction over either
his involuntary resignation claim or his claim tha t the agency improperly denied
his WIGI. IAF, Tab 9, Initial Decision (ID) at 3 -5. She therefore dismissed the
appeal for lack of jurisdiction without holding the requested hearing. ID at 1, 5.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has f iled a response, and the appellant has filed a reply
to the agenc y’s response. PFR File, Tabs 3 -4.
¶5 An employee -initiated action, such as a re signation , is presumed to be
voluntary unless the appellant presents sufficient evidence to establish that the
action was obtained through duress, coercion, or misinformation, or if the
appellant demonstrates that the employer engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in the
appellant’s position wo uld have felt compelled to resign . See Vaughan v.
Department of Agriculture , 116 M.S.P.R. 493 , ¶ 11 (2011); Miller v. Department
of Homeland Security , 111 M.S.P .R. 325 , ¶ 8 (2009), aff’d per curiam ,
361 F. App’x 134 (Fed. Cir. 2010). The reasonable person test is an objective
test and does not depend on the appellant’s subjective characterization of the
agency’s actions. See Markon v. Department of State , 71 M.S.P.R. 574 , 577 -78
(1996). Furthermore, when an appellant raises allegations of discrimination in
connection with an involuntariness claim, evidence of discrimination may be
considered only in terms of t he standard for voluntariness. Id. at 578. Thus, in
an involuntary resignation appeal, evidence of discrimination goes to the
ultimate question of coercion, i.e., whether under all of the circumstances,
working conditions were made so difficult by the ag ency that a reasonable
person in the employee’s position would have felt compelled to resign . Id.
4
¶6 Below, the appellant provided few facts —and no evidence —in support of
his claim that his resignation was involuntary . Rather, he provided bare
assertion s that the agency improperly placed him on a performance improvement
plan, denied his WIGI , and discriminated against him . IAF, Tab 1 at 7.
Accordingly, we agree with the administrative judge’s finding that the appellant
failed to nonfrivolously allege involuntariness . ID at 3 -4.
¶7 On review, the appellant expands on the factual allegations he made below.
PFR File, Tabs 1, 4. All of these new arguments , however, are based on facts
that were known to him while his appeal was pending before the administrati ve
judge , and he could have raised them below in response to the administrative
judge’s jurisdictional order or at the status conference scheduled to discuss
jurisdiction . Generally, the Board will not consider an argument raised for the
first time in a p etition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The
appellant here has not attempted to make his required showing , and we thus have
not relied on his new arguments on review . Nevertheless, even if we were to
consider them, they do not affect the outcome of the case.
¶8 A nonfrivolous allegation is an allegation of fact that, if proven, could
establish a prima facie case that the Board has jurisdiction over the appeal. See,
e.g., Williams v. Department of Agriculture , 106 M.S.P.R. 677 , ¶ 10 (2007). The
appellant’s new arguments , even if he were able to prove them, would not show
that his resignation was involunta ry. For example, the appellant challenges the
merits of his 1-day suspension and the denial of his WIGI , and he sets forth his
version of events concerning his alleged performance and disciplinary issues that
occurred prior to his resignation . PFR File, Tab 4. However, he has not alleged
facts to show that his working conditions were so intolerable such that a
reasonable person in h is position would have felt compelled to resign. See
Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000) (finding that
5
dissatisfaction with work assignments, a feeling of being unfairly criticized, or
difficult or unpleasant working conditions generally are not so intolerable as to
compel a reasonable person to resign).
¶9 In addition, t he fact that an employee is faced with the unpleasant choice of
either resigning or opposing a potential removal action does not rebut the
presumed voluntariness of his ultimate choice of resignation, unless the
employee can show that the agency knew or should have known that the reason
for the threatened removal could not be substantiated. Harris v. Department of
Veterans Affairs , 114 M.S.P.R. 239 , ¶ 8 (2010). Here, the appellant makes no
factual allegations that would even suggest that the agency was awar e that it
could not prove its charges. See Garcia v. Department of Homeland Security ,
437 F.3d 1322 , 1329 (Fed. Cir. 2006) (en banc) (concludin g that a resignation is
not involuntary if the employee had a choice of whether to resign or contest the
validity of the agency action). We find, therefore, that the administrative judge
correctly dismissed this appeal 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 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
3 The appellant does not appear to challenge the ad ministrative judge’s finding that he
failed to nonfrivolously allege jurisdiction over the denial of his WIGI as an otherwise
appealable action, and we discern no basis to disturb that finding.
4 Since the issuance of the initial decision in this matter, t he Board may have updated
the notice 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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via com mercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleb lower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activi ties listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOSEPH_CHRISTOPHER_M_NY_0752_17_0019_I_1_FINAL_ORDER_2017271.pdf | 2023-03-31 | null | NY-0752 | NP |
3,333 | https://www.mspb.gov/decisions/nonprecedential/GASSMAN_DAVID_L_AT_0752_16_0430_I_3_FINAL_ORDER_2017296.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID L. GASSMAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -16-0430 -I-3
DATE: March 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carole LeAnn Mezzacapo , Oakdale, Louisiana, for the appellant.
Carolyn D. Jones , Esquire, Williston, Vermont, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . On petition for review, the appellant disputes the
administrative judge’s finding that he did not establish his claim of disability
discrimination and his related claim of harmful procedural error. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
grant petitions suc h 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 fact s 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 review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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:
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 n o 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 re view 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 judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | GASSMAN_DAVID_L_AT_0752_16_0430_I_3_FINAL_ORDER_2017296.pdf | 2023-03-31 | null | AT-0752 | NP |
3,334 | https://www.mspb.gov/decisions/nonprecedential/KIMBLE_DAVIS_ROSE_ANN_PH_0831_16_0365_I_1_FINAL_ORDER_2016537.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSE ANN KIMBLE -DAVIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -16-0365 -I-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rose Ann Kimble -Davis , Reading, Pennsylvania, 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
affirmed the June 2, 2016 reconsideration decision issued by the Office of
Personnel Management (OPM) denying her request for a former spouse survivor
annuity . On petition for review, the appellant argues that she is entitled to a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
survivor annuity as a surviving spouse because the divorce decree and
accompanying post -nuptial agreement submitted in the record were invalid .
Petition for Review File, Tab 1 at 2. She further argues that the decedent , her
former spouse, submitted a form to OPM designating her to rece ive a survivor
annuity and that the administrative judge erred in denying her motion to compel
discovery of recordings of telephone conversations she had with OPM that would
have confirmed the existence of that document . Id. at 1-2.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the la w to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of t he case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS2
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).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and 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.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this deci sion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial 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 | KIMBLE_DAVIS_ROSE_ANN_PH_0831_16_0365_I_1_FINAL_ORDER_2016537.pdf | 2023-03-30 | null | PH-0831 | NP |
3,335 | https://www.mspb.gov/decisions/nonprecedential/GEEHAN_NANCY_O_PH_0752_15_0239_C_1_FINAL_ORDER_2016625.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NANCY O. GEEHAN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER S
PH-0752 -15-0239 -C-1
PH-1221 -16-0014 -C-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Feasterville, Pennsylvania, for the appellant.
Arlene R. Yang , Esquire , and Suzanne K. Roten , Esquire, San Diego,
California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision in these joined appeals , which dismissed her petition for enforcement 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 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
lack of jurisdiction. 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 o f 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 th ese 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 and AFFIRM the compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In these joined appeals, the par ties reached a settlement agreement pursuant
to which the appellant agreed, among other things, to dismiss al of both appeals
with prejudice. Geehan v. Department of Agriculture , MSPB Docket No.
PH-1221 -16-0014 -W-1, Initial Appeal File ( 0014 IAF), Tab 24 at 7. The parties
did not request that the Board enter the agreement into the record for
enforcement . 0014 IAF, Tab 24 at 9. T hey instead provided that, “Compliance
issues shall be governed by the applicable [ Equal Employment Opportunity
Commission (EE OC)] regulations,” citing 29 C.F.R. § 1614.504 . Id.
¶3 The administrative judge issued an initial decision , dismissing the appeals
as withdrawn . 0014 IAF, Tab 25, Initial Decision (ID). He observed that,
consistent with the agreement, any compliance issues would be raised pursuant to
the equal employment opportunity (EEO) process . ID at 2 n.*. The
administrative judge further stated that because he did not make a finding on
3
Board jurisdiction, the agreement was not enforceable by the Board. Id. This
statement was accurate at the time the initial decision was issued. See Delorme v.
Department of Interior , 124 M.S.P.R. 123, ¶ 12 (2017) (explaining that the Board
previously would not enter a settlement agreement into the record for
enforcement purposes unless, as relevant here, the subject matter of the appeal
was within the Board’s jurisdiction).
¶4 The Board denied the appellant’s subsequent petition fo r review, in which
she requested that the Board dismiss the appeal as settled instead of as
withdrawn. Geehan v. Department of Agriculture , MSPB Docket No. PH -1221 -
16-0014 -W-1, Final Order (Dec. 19, 2016) (Final Order) . In light of the parties’
decision to invoke EEO C regulations for the enforcement of their settlement
agreement , rather than have it entered into the record of the appellant’s Board
appeal for enforcement purposes, the Board found that the language used by the
administrative judge to describe the nature of the dismissal amounted to a
distinction without a difference. Id.
¶5 Following the Board’s Final Order, the Board issued a decision revisiting
its prior law regarding its enforcement authority. Delorme , 124 M.S.P.R. 123 ,
¶¶ 9-21. The Board found its enforcement authority was not dependent on a prior
finding of Board jurisdiction over the underlying matter appeal ed. Id., ¶¶ 13-21.
¶6 The appellant subsequently filed this petition for enforcement in which she
argued that the agency had breached the parti es’ settleme nt agreement. Geehan v.
Department of Agriculture , MSPB Docket No. PH -0752 -15-0239 -C-1,
Compliance File ( CF), Tab 1. Because the parties had not requested that the
Board enter their settlement agreement into the record for the purpose of
enfo rcement, the administrative judge ordered the appellant to show cause why
the petition for enforcement should not be dismissed for lack of jurisdiction. CF,
Tab 2. In response, the appellant argued that because the agreement was part of
the record, langu age specifying the Board’s enforcement authority was
unnecessary . CF, Tab 3 at 4 -5, 7. She also argued that she reasonably assumed
4
that the Board would have enforcement authority because the agreement arose out
of the Board’s Mediation Appeals Program ( MAP ). Id. at 5-6. The agency
responde d in opposition . CF, Tab 5.
¶7 The administrative judge issued a compliance initial decision, dismiss ing
the appellant ’s petition for enforcement for lack of jurisdiction. CF, Tab 6,
Compliance Initial Decision (CID) . He found that the parties had unambiguously
agreed to enforcement pursuant to EEO procedures and did not seek to place the
agreement into the Board’s record for enforcement purposes. CID at 4-5;
5 C.F.R. § 1201.182 (a). He further determined that the Board’s decision in
Delorme did not change the outcome because, regardless of the Board’s
jurisdiction over enforcement matters generally, the parties had not agreed to
Board enforcement. CID at 3 n.2.
¶8 In her petition for review of the compliance initial decision , the appellant
again reiterates her arguments below . Geehan v. Department of Agriculture ,
MSPB Docket No. PH -0752 -15-0239 -C-1, Compliance P etition for Review
(CPFR) File, Tab 1. The agency has responded to the petition for review, and the
appellant has replied. CPFR Fi le, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 The Board will incorporate a settlement agreement into the record and
enforce its terms if the parties intended that the agreemen t be enforced by the
Board and the agreement is lawful on its face and was free ly reached and
understood by the parties. Delorme , 124 M.S.P.R. 123, ¶¶ 10, 12 -13, 21 ; Bays v.
Department of the Army , 54 M.S.P.R. 469 , 470 -71 ( 1992) ; 5 C.F.R.
§ 1201.182 (a). As discussed above, at the t ime the parties entered into their
settlement agreement , the Board also required a finding of Board jurisdiction over
the subject matter of the appeal. Delorme , 124 M.S.P.R. 123 , ¶ 12. That
requirement was later eliminated in the Delorme decision. Id., ¶¶ 13-21.
5
¶10 The administrative judge found that the parties did not intend that the
agreement be enforced by the Board . CID at 5. We agree. The settlement
agreement references 29 C.F.R. § 1614.504 , which provides that an employee
may seek enforcement of a settlement agreement reached during the EEO process
by first contacting the agency ’s EEO director and, if dissatisfied, seeking review
by the EEOC. 0014 IAF, Tab 24 at 9. It identifies the individual at the agency
the appellant could contact if she “believe[d] that the Agency has not complied”
with the agreement. Id. As the administrative judge found, this provision
unambi guously reflect ed the intent of the parties to seek enforcement in another
forum . See Smith v. Department of the Interior , 113 M.S.P.R. 592 , ¶ 8 (2010)
(observing that the plain and unambiguous terms of a settlement agreement
control its in terpretation); Grubb v. Department of the Interior , 76 M.S.P.R. 639,
642-43 (1997) (finding that an administrative judge erred by entering an
agreement into the record for enforcement purposes when the agreement provided
for enforcement pursua nt to 29 C.F.R. § 1614.5 04). The appellant suggests that
the agreement’s enforcement provision is not inconsistent with enforcement
before the Board. CPFR File, Tab 1 at 8. We are not persuaded.3
¶11 The appellant argues that she and her nonattorney representative reasonably
believed that the agreement would be enforceable by the Board because it arose
out of the Board’s MAP process and the MAP mediator did not alert the appellant
to the enf orcement issue. CPFR File, Tab 1 at 6; CF, Tab 3 at 5-6. We decline to
find that the MAP mediator had an affirmative duty to inform the appellant that
the Board would lack enforcement over the agreement. Nonetheless, to the e xtent
3 The appellant has indicated that she is already p ursuing enforcement before the
EEOC’s Office of Federal Operations (OFO) . CPFR File, Tab 1 at 8. She argues that
OFO lacks sufficient enforcement authority because it cannot order the Board to
enforce the agreement. Id.; CF, Tab 3 at 8 . We agree with t he administrative judge that
we cannot interpret the agreement as permitting Board enforcement on this basis. CID
at 5; see Flores v. U.S. Postal Service , 115 M.S.P.R. 189 , ¶ 10 (2010) (explainin g that
the Board has no authority to unilaterally modify the terms of the parties’ settlem ent
agreement ).
6
that the appellant is arguing that she intended for the Board to have enforcement
authority, we cannot consider this parol evidence of her intent because the
agreement is unambiguous . Flores v. U.S. Postal Service , 115 M.S.P.R. 189 , ¶ 10
(2010) ; see Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981)
(explaining that the appellant is responsible for the errors of his chosen
representative ). In any event , as the appellant acknowledges, in dismissing the
underlying appeal, the a dministrative judge clearly stated in the initial decision
that the settlement agreement was not enforceable by the Board. ID at 2 n.* ;
CPFR File, Tab 1 at 6 -7.
¶12 The appellant also asserts that the administrative judge incorrectly stated
that the reason the Board could not enforce the agreement was because he had not
made a finding of Board jurisdiction . CPFR File, Tab 1 at 6 -7; ID at 2 n *. As
discussed above, t his statement was accurate at the time that it was made . The
subsequent elimination of the jurisdictional requirement for Board enforcement is
not a basis for setting aside the agreement. Delorme , 124 M.S.P.R. 123 , ¶¶ 13 ,
21. That change did not eliminate the requirement that the parties intended that
the Board have enforcement authority, something that is lacking here . Id.; Bays ,
54 M.S.P.R. at 470-71; 5 CFR § 1201.182 (a).
¶13 Accordingly, we affirm the compliance initial decision that dismissed the
appellant’s petition for enforcement for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
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 ma tter.
7
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and r equirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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 r epresentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
9
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
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.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
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 | GEEHAN_NANCY_O_PH_0752_15_0239_C_1_FINAL_ORDER_2016625.pdf | 2023-03-30 | null | S | NP |
3,336 | https://www.mspb.gov/decisions/nonprecedential/SCHEINER_STANLEY_DC_0752_14_0744_I_3_FINAL_ORDER_2016635.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STANLEY SCHEINER,
Appellant,
v.
FEDERAL COMMUNICATIO NS
COMMISSION,
Agency.
DOCKET NUMBER S
DC-0752 -14-0744 -I-3
DC-1221 -17-0037 -W-11
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Douglas Hartnett , Esquire, Washington, D.C., for the appellant.
Christopher Morgan and Lily Sara Farel , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member3
1 We have joined these two appeals on review based on our determination that joinder
will expedite processing of the cases and will not adversely affect the interests of the
parties. 5 C.F.R. § 1201.36 (b).
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative 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).
3 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 petition s for review of the initial decision s, which
dismissed as settled the appeal of his removal and his individual right of action
(IRA) appeal . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision s contain erroneous findings of material fact;
the initial decision s are based on an erroneous interpretation of statute or
regulation or the erroneous application o f the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal s or the initial
decision s were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the ou tcome of the case s; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record s 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 s for review.
Therefor e, we DENY the petition s for review and AFFIRM the initial decision s,
which are now the Board’s final decision s. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective March 31, 2014, the agen cy removed the appellant, a n Attorney
Advisor, based on: (1) excessive absences; and (2) absence without leave and
failure to request leave following proper pro cedures. Scheiner v. Federal
Communications Commission , MSPB Docket No. DC -0752 -14-0744 -I-1, Initial
Appeal File (IAF), Tab 1 at 19-26. On appeal to the Board , he argued that the
charges were unsubstantiated and th at th e penalty was too severe , and he alleged
that the agency’s action was due to disability discrimination based on failure to
accom modate and retaliation for engaging in equal employment opportunity
activity, making protected disclosures, and exercising his rights under the Family
and Medical Leave Act. Id. at 6-7. He requested a hearing. Id. at 2. The
3
administrative judge dismiss ed the appeal without prejudice for a period of 60
days , in part because the appellant indicated that he had a complaint pending
before the Office of Special Counsel (OSC) regarding his claim of whistleblower
retaliation. IAF, Tab 6, Initial Decision at 1-3. The administrative judge
dismissed the refiled appeal without prejudice after determining that the parties
were actively engaged in extensive discovery and that it did not appear that they
would be ready for the scheduled hearing. Scheiner v. Federal Communications
Commission , MSPB Docket No. DC -0752 -14-0744 -I-2, Tab 70, Initial Decision
at 1-3. After the appeal was again refiled, discovery continued. Scheiner v.
Federal Communications Commission , MSPB Docket No. DC -0752 -14-0744 -I-3,
Appeal File ( I-3 AF), Tabs 3 -14, 16 -22, 24 -31, 4 0-43, 45 -53.
¶3 During a prehearing conference , the administrative judge informed the
parties that the appellant had failed to file an IRA appeal and that his
whistleblowing claim would b e limited to the removal action. S ubsequently, the
appellant filed a “Motion to Consolidate this Complaint with Appellant’s IRA
Complaint4 filed on October 16, 2016.” I -3 AF, Tab 54. He indicated that ,
beginning in 2011 and continuing to date, he made disclosures to agency
management, th e Office of Inspector General, Human Resources officials, and
OSC concerning alleged fraud in a specific program that was under investigation .
Id. at 16, 35-41. He stated that he already had filed complaints with OSC but that
they had been dismissed. Id. at 17. The appellant claimed that, again, beginning
in 2011, the agency began to retaliate agai nst him based on his disclosure s and
that the retaliation continued up until his removal in 2014. Id. at 18-30. He
stated that he only receive d OSC’s closure letters dated July 22, 2015, August 24,
2015, and Ma y 17, 2016 , id. at 47 -50, on October 15, 2016, id. at 30 -31, and he
argued that, under the circumstances, the deadline for filing his IRA appeal
4 As did the administrative judg e, w e understand the appellant’s motion to be a request
that the administrative judge join his removal appeal with the IRA appeal he was filing
that day.
4
should be equitably tolled. Id. at 42 -43. The appellant submitted an affidavit in
support of his position , id. at 44 -45, and h e also filed a supplemental pleading
regarding his motio n to join his appeals , I-3 AF, Tab 55. In her prehearing
conference summary, the administrative judge denied the ap pellant’s motion, not
credi ting his claims in support of his request for waiver of the filing deadline . I-3
AF, Tab 57 at 13 -14.
¶4 That same day, the administrative judge docketed the appellant’s IRA
appeal. Scheiner v. Federal Communications Commission , M SPB Docket
No. DC-1221 -17-0037 -W-1, Initial Appeal File (W-1 IAF), Tab 1. The
administrative judge set forth the time limits for filing an IRA appeal with t he
Board under 5 U.S.C § 1214 (a)(3) and 5 C.F.R. § 1209.5 (a)(1) and (2) which
provide , in pertinent part, that an IRA appeal must be filed no later than 65 days
after the date of issuance of OSC’s written notification that it has terminat ed its
investigation of the appellant’s allegations or, if the appellant shows that OSC’s
notification was received more than 5 days after the date of issuance, within
60 days after the date the appellant received OSC ’s notification . W-1 IAF, Ta b 4
at 1-2. T he administrative judge advised the appellant that, based on the May 17,
2016 closure letter from OSC, his October 16, 2016 IRA appeal appeared to have
been filed 87 days late. Id. at 2. The administrative judge furth er explained that
a “go od cause” sta ndard did not apply to such a timeliness determination but that
the appellant could attempt to establish that the principle of equitable tolling
should be applied to waive the filing deadline and under what circumstances
Federal courts typically extend such relief. Id. at 2-3. The administrative judge
afforded the appellant 10 days in which to respond to her order , id. at 3, which he
did in several “preliminary” submission s, W-1 IAF, Tabs 6 -8, and the agency also
filed a response , W-1 IAF, Tab 10.
¶5 Meanwhile, the appellant filed a motion to reschedule the hearing on his
removal appeal , set to begin in 6 days , pending the administrative judge’s ruling
on the timeliness of the IRA appeal, I-3 AF, Tab 64 , and he also moved tha t the
5
administrative judge reconsider her denia l of his motion to join the two appeals ,
1-3 AF, Tab 65. The administrative judge denied both motions , stating that the
appellant would have a full opportunity to brief the issue of the timeliness of his
IRA appeal , after which, upon review, she would either dismiss the appeal as
untimely or schedule a hearing on the IRA appeal at a future date . W-1 IAF,
Tab 11. Thereafter , the appellant sought an extension of time in which to file
additional evidence on the timeliness issue, W -1 IAF, Tab 12, which th e
administrative judge granted, W-1 IAF, Tab 13.
¶6 On the day of the administrative judge’s order and prior to the schedule d
hearing , however, the parties submitted a settlement agreement resolving both
appeals. W -1 IAF, Tab 14 ; I-3 AF, Tab 67. The agreement provided in pertinent
part that the agency would pay the appellant’s attorney $150,000, rescind and
expunge any and all documentation referencing the removal action from the
appellant ’s Official Personnel File , and process his resignation “for medical
reasons,” effecti ve March 31, 2014, the date of his removal . The appellant agreed
to waive his right to pursue and irrevocably release the agency from all claims
arising out of his emplo yment with the agency which he brought or could have
brought in any forum. W-1 IAF, Tab 14; I -3 AF, Tab 67. On the basis of the
agreement, the administrative judge dismissed the appeals as settled. W -1 IAF,
Tab 15, Initial Decision; I -3 AF, Tab 68, Init ial Decision.
¶7 The appellant has filed identical petitions for review in both appeals,
Scheiner v. Federal Communications Commission , MSPB Docket No. DC -1221 -
17-0037-W-1, Petition for Review ( W-1 PFR) File, Tab 1; Scheiner v. Federal
Communications Commission , MSP B Docket No. DC -0752 -14-0744 -I-3, Petition
for Review (I -3 PFR) File, Tab 1, the agency has filed identical responses, W-1
PFR File, Tab 5; I -3 PFR File , Tab 5, and the appellant has filed identical
replies,5 W-1 PFR File, Tab 6; I -3 PFR Fil e, Tab 6.
5 In our discussion on review, we will cite only to “PFR File” f or the sake of clarity .
6
ANALYSIS
¶8 A party may challenge the validit y of a settlement agreement if he believes
that it is unlawful, involuntary, or the result of fraud or mutual mistake. E.g.,
Sargent v. Department of Health & Human Services , 229 F.3d 1088 , 1091 (Fed.
Cir. 2000); Wade v. Department of Veterans Affairs , 61 M.S.P.R. 580, 583
(1994). To establish that a settlement was fraudulent as a result of coercion or
duress, a party must prove that he involuntarily accepted the other party’s terms,
that circumstances permitted no other alternative, and that such circumstances
were the result of the other party’s coercive acts. Potter v. Department of
Veterans Affairs , 111 M.S. P.R. 374, ¶ 6 (2009). A party challenging the validity
of a settlement agreement bears a “heavy burden.” Asberry v. U.S. Postal
Service , 692 F.2d 1378 , 1380 (Fed. Cir. 1982). An appellant’s mere
post-settlement remorse or change of heart cannot serve as a basis for setting
aside a valid settlement agreement. Potter , 111 M.S.P.R. 374, ¶ 6; Thompson v.
Department of Veterans Affairs , 52 M.S.P.R. 233 , 237 (1992).
¶9 The appellant does not allege, nor do we discern any basis upon which to
find, that the settlement agreement here was unlawful. Neither does the appellant
suggest, nor the record show, that he entered into the agreement involuntarily.
Paragraph 1 0 of the settlement agreement specifically provided that the parties
agreed that the agreement constituted a voluntary act, free from undue influence,
fraud, misrepresentation, or coercion. W -1 IAF, Tab 14; I -3 AF, Tab 67.
Moreover, the appellant was rep resented by counsel during negotiations , and his
attorney signed the agreement as did he. Cf. Swidecki v. U.S. Postal Service ,
101 M.S.P.R. 110, ¶ 18 (2006) (finding that representation by counsel is
significant in determining the validity of an appeal -rights waiver).
¶10 The appellant has not shown that the agency acted fraudulently regarding
the settlement agreement . Any purported error by OSC in sending the closure
letter to a prior representative of the appellant ’s cannot be attributed to the
agency. With his petition for review, the appellant has submitted a December 5,
7
2016 letter from OSC suggesting such an error . PFR File, T ab 1 at 10. Although
the letter is dated after the close of the record on review, to constitute new and
material evidence, the information contained in the document, not just the
document itself, must have been unavailable despite due diligence when the
record closed . Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564
(1989). The appellant has failed to show that he could no t have timely secured
this information by contacting OSC earlier regarding the status of his complaint.
¶11 In addition, t he appellant has not shown that the parties operated under
mutual mistake sufficient to justify striking the agreement as invalid. Althou gh
they may have share d the perception that the appellant’s IRA appeal was
untimely, the administrative judge had not explicitly ruled on that issue prior to
the date the partie s settled the appeals. On the contrary , she had directed the
parties to addres s the issue of equitable tolling and had granted the appellant’s
request for additional time in which to submit his evidence and argument on that
issue , but the parties reached a settlement only several days after the
administrative judge granted the appel lant’s request for an extension. W -1 IAF,
Tabs 11 -14.
¶12 Finally, the appellant has not shown that he had no other option but to
accept the terms of the agreement. As we have found, he could have timely
pursued the matter with OSC to learn the status of his complaint and included that
information in his response to the administrative judge’s order on the issue of the
applicability of equitable tolling. He also could have proceeded to hearing in his
removal appeal and presented evidence on his claim of retaliation for
whistleblowing. Even after he had signed the agreement, the appellant could have
acted on its right -to-revoke provision, I -3 AF, Tab 67 at 6; W -1 IAF, Tab 14 at 6 ;
yet he did not exercise that option.
¶13 In sum, we find that the appellant has failed to meet his burden of showing
that the settlement agreement was unlawful, involuntary, or the result of fraud or
mutual mistake. Asberry , 692 F.2d at 138 0.
8
¶14 On review, the appellant argues that the time limit for the filing of his IRA
appeal should be equitably tolled based on the December 5, 2016 letter from OSC
that he submitted with his petition for review and that we have declined to
consider , having fo und that it is not new evidence. In any event , the issue of the
timeliness of the appellant’s IRA appeal is no longer before the Board because of
the parties’ settlement agreement , which we have found to be valid.
¶15 The appellant also challenges on review the administrative judge’s earlier
denial of his request to join his two appeals, arguing that the administrative judge
was misled into thinking that he had agreed that the representative to whom the
May 16, 2016 closure letter was sent was actually his rep resentative at the time ,
when that was not the case. PFR File, Tab 1 at 8-9. Administrative judge s have
wide discretion to control the proceedings over which they preside , including
ruling on motions. 5 C.F.R. § 1201.41 (b)(8). The appellant’s motion for joinder
was filed a week before the removal hearing was set to begin, after the parties had
participated in extensive discovery regarding that appeal over several years. The
administrative judge’ s denial of the motion based on the record before her was
well within her discretion. As noted, she advised the parties that she would
consider the timeliness of the appellant’s IRA appeal after considering their
additional evidence a nd argument and that, if she found the appeal timely, she
would schedule a hearing at a future date . W -1 IAF, Tab s 11, 13. The appellant
agreed to settle both appeals the following day. W -1 IAF, Tab 14. Although he
suggests that proceeding to hearing f ollowing the administrative judge ’s ruling
would have been, for him, a “fruitless exercise,” PFR File, Tab 1 at 5, his
suggestion assumes that the administrative judge would ha ve found his IRA
appeal untimely . As we have found, however, she had not yet ma de a finding as
to timeliness , and it was the appellant ’s decision to settle his appeals that
prevented her from making a definitive ruling on that issue. Th e appellant has
not shown that the administrative judge’s ruling was an abuse of discretion or tha t
it otherwise prejudiced his substantive rights. Cf. Fulton v. Department of the
9
Army , 95 M.S.P.R. 79 , ¶ 11 (2003) ( finding that the Board will not disturb an
administrative judge ’s denial of a party’s proposed witnesses unless such denial
constitutes an abuse of discretion).
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and r equirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 i ssuance of the initial decision s in th ese matter s, the Board may have
updated the notice 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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:/ /www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept r epresentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was bas ed, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appea ls for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
11
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
12
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o 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 re view either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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
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 | SCHEINER_STANLEY_DC_0752_14_0744_I_3_FINAL_ORDER_2016635.pdf | 2023-03-30 | null | S | NP |
3,337 | https://www.mspb.gov/decisions/nonprecedential/RASH_GEOFFREY_T_CH_0752_17_0113_I_1_FINAL_ORDER_2016697.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GEOFFREY T. RASH,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CH-0752 -17-0113 -I-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Geoffrey T. Rash , Highland Heights, Kentucky, pro se.
Jennifer E. Bugaj , Esquire, Pamela D. Langston -Cox, Esquire, and
Russ Eisenstein , 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
affirmed his removal from Federal service. On petition for review, the appellant
reiterates his argument that the removal action constitutes discrimination on the
basis of his po litical affiliation. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulat ion or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201 .115 ( 5 C.F.R. § 1201.115 ).
¶2 We have fully considered the filings in this appeal, including the appellant’s
argument that the deciding official should have investigated an allegation that
would like ly have prejudiced t he appellant and compromised the deciding
official’s decision -making process. We find these arguments unpersuasive , and
we conclude that the petitioner has not established any basis under section
1201.115 for granting th e 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 R IGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate 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 carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in g eneral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal Circuit, you may visit our 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 th e services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a c ivil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 receive s this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepaym ent of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 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 pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Feder al Circuit or any court of appeals of
competent jurisdiction.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.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cou rt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RASH_GEOFFREY_T_CH_0752_17_0113_I_1_FINAL_ORDER_2016697.pdf | 2023-03-30 | null | CH-0752 | NP |
3,338 | https://www.mspb.gov/decisions/nonprecedential/MIDDLEBROOK_LATROY_MELVIN_PH_3330_16_0477_I_1_FINAL_ORDER_2016770.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LATROY MELVIN MIDDLE BROOK,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-3330 -16-0477 -I-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
LaTroy Melvin Middlebrook , Arlington, Texas, pro se.
Daniel Hutman , Esquire, and Michael Davio , Esquire, Baltimore,
Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of materia l fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decisio n were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not a vailable when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude tha t the 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).
BACKGROUND
¶2 The agency terminated the appellant during his competitive -service
probationary period, and he filed a Board appeal. Middlebrook v. Social Security
Administration , MSPB Docket N o. PH-315H -16-0053 -I-1, Initial Appeal File,
Tab 1; Middlebrook v. Social Security Administration , MSPB Docket No.
PH-315H -16-0053 -I-1, Final Order, ¶ 2 (Sept. 22, 2016) . The administrative
judge issued an initial decision that dismissed the appeal for la ck of jurisdiction,
and the appellant filed a petition for review. Middlebrook , MSPB Docket No.
PH-315H -16-0053 -I-1, Final Order, ¶¶ 2-4. The Board dismissed the petition for
review as untimely filed but found that the appellant had raised claims under the
Veterans Employment Opportunities Act of 1998 (VEOA) and the Uniformed
Services Employme nt and Reemployment Rights Act of 1994 (USERRA), which
3
the administrative judge had not addressed . Id., ¶¶ 10-11. The Board forwarded
these claims to the Northeastern Regional Office for docketing as the instant
appeal. Id., ¶ 14.
¶3 On September 23, 2016, the administrative judge issued two jurisdictional
order s—one on VEOA and one on USERR A—and directed the appellant to file
evidence and argument on t he jurisdictional issues no later than October 2, 2016.
Middlebrook v. Social Security Administration , MSPB Docket No. PH-3330 -16-
0477 -I-1, Initial Appeal File (IAF), Tabs 3, 4. The appellant did not respond. On
June 27, 2017, the administrative judge issued an order for the appellant to show
cause why his appeal should not be dismis sed for lack of jurisdiction. IAF,
Tab 6. He directed the appellant to address the jurisdictional issue and to explain
why he had failed to respond to the previous orders. Id. The administrative judge
set a response deadline of July 5, 2017. Id. The appellant did not file a response.
On July 10, 2017, the administrative judge issued an initial decision dismissing
the appeal for failure to prosecute. IAF, Tab 9, Initial Decision.
¶4 On July 24, 2017, the appellant filed a petition for review , stating that he
wishes to submit a claim for compensatory damages for his wrongful termination.
Middlebrook v. Soc ial Security Administration , MSPB Docket No. PH-3330 -16-
0477 -I-1, Petition for Review (PFR) File, Tab 1 at 4.3 He attached 108 pages of
unexplained documentation to his petition. Id. at 5-113. On October 3, 2017, the
appellant filed an additional 110 pa ges of unexplained documentation. PFR File,
Tab 2 at 8 -118. The agency has not filed a response.
3 The appellant filed the petition for review via t he e-Appeal Online form for a motion
for compensatory damages. PFR File, Tab 1 at 4. We find that it was appropriate to
construe this filing as a petition for review because the record below already had
closed, and the disposition of the appeal was such that a motion for compensatory
damages would have been unavailing. See generally 5 C.F.R. § 1201.204 .
4
ANALYSIS
¶5 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Ahlberg v. Department of Health and Huma n
Services , 804 F.2d 1238 , 1242 (Fed. Cir. 1986); 5 C.F.R. § 1201.43 (b). The
imposition of such a severe sanction must be used only when necessary to serve
the ends of justice , as when a party has failed to exercise basic due diligence in
complying with Board orders , or has exhibited negligence or bad faith in his
efforts to co mply. Chandler v. Department of the Navy , 87 M.S.P.R. 369 , ¶ 6
(2000) . The Board will review a dismissal for failure to prosecute under an abuse
of discretion standard. Williams v. U.S. Postal Service , 116 M.S.P.R. 3 77, ¶ 6
(2011) .
¶6 In this case, the appellant failed to respond to two jurisdictional orders. He
also failed to respond to a follow -up show cause order that specifically warned
him that his appeal would be dismissed i f he did not respond. In fact, there is no
evidence that the appellant took any steps to prosecute his appeal at all until he
filed his petition for review . Th is even includes the appeal itself, which was filed
not by the appellant but sua sponte by the Board . The Board has upheld
dismissals for failure to prosecute under similar circumstances. See, e.g. ,
Leseman v. Department of the Army , 122 M.S.P.R. 139 , ¶ 7 (2015) . We therefore
find that the administrative judge did not abuse his discretion in dismissing the
appeal.
¶7 The appellant ’s petition for review does not address either the jurisdictional
issue or the issue of failure to prosecute. PFR File, Tab 1 at 4. Nor does the
attached documentation have any apparent relation to these issues. Id. at 5-113.
Furthermore, even considering the appellant ’s untimely supplement to the petition
for review , we find that he still has not established an adequate basis to disturb
the initial decision . The appellant explains that he was moving across the country
and had limited internet access between early July and July 24, 2017, PFR File,
Tab 2 at 5, but this does not account for his failure to respond to the
5
September 23, 2016 jurisdictional orders or to the June 27, 2017 show cause
order. Even if the appellant ’s move might have affected his ability to comply
with the latter order, he has not explained why he was unable to inform the
administrative judge of his upcoming move or request an extension of tim e to
reply. Furthermore, this pleading and its supplementary documentation still does
not address the outstanding jurisdictional issues, which the administrative judge
twice informed the appellant he must address if his appeal wa s to proceed. PFR
File, T ab 2; IAF, Tabs 3 -4, 6.
¶8 For these reasons, we find that the administrative judge did not abuse his
discretion in dismissing the appeal for failure to prosecute and that the appellant
has provided no basis on review to disturb the initial decision .
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate f orum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option i s most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately revie w the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three mai n possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial r eview in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative 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 this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices 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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for t he Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protecti on Board appellants before the 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 the ir
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 | MIDDLEBROOK_LATROY_MELVIN_PH_3330_16_0477_I_1_FINAL_ORDER_2016770.pdf | 2023-03-30 | null | PH-3330 | NP |
3,339 | https://www.mspb.gov/decisions/nonprecedential/SAMSON_JAMES_P_AT_0752_17_0459_I_1_FINAL_ORDER_2016806.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES P. SAMSON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -17-0459 -I-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
E. Michael Ruberti , Esquire, Saint Simons Island, Georgia, for the
appellant.
Stephanie M. Lewis , Glynco, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The ap pellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal challenging his removal . On petition
for review, the appellant argues that the administrative judge misconstrued Board
law in finding that the appellant resigned before his remova l would have been
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
effective and that, in the absence of a claim of involuntariness, his appeal must be
dismisse d. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
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
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.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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.
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.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative 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 Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by 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.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the 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 w ebsites, 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 | SAMSON_JAMES_P_AT_0752_17_0459_I_1_FINAL_ORDER_2016806.pdf | 2023-03-30 | null | AT-0752 | NP |
3,340 | https://www.mspb.gov/decisions/nonprecedential/EAKINS_REGGIE_L_SF_0752_16_0714_I_1_FINAL_ORDER_2016909.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REGGIE L. EAKINS, JR .,
Appellant,
v.
DEPARTMENT OF ENERGY ,
Agency.
DOCKET NUMBER
SF-0752 -16-0714 -I-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reggie L. Eakins, Jr. , Benton City, Washington, pro se.
Anissa Siefken and Marla K. Marvin , Richland, Washington, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 his appeal of the agency ’s cancellation of his promotion for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
circu mstances: 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 argumen t is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to clarify that the appellant failed to prove by preponderant
evidence that his promotion was approved by an authorized appointing official
aware he was making the promotion, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a GS-13 General Engineer with the agency’s Office of River
Protection, applied for a GS -14 Nuclear Engineer position with the agency ’s
Richland Operation Office in May 2016. Initial Appeal File (IAF), Tab 1 at 7 -8;
Tab 5 at 39 -56. Although the position was listed as a GS -13/14 position with a
promotion potential to GS -14, the appellant indicated in his application that he
only wished to be considered for th e position at the GS -14 level. IAF, Tab 5
at 37, 39 , 51-56. The appellant was selected for the position, and it was offered
3
and he accepted it on June 15, 2016, with an effective date of June 26, 2016.
IAF, Tab 1 at 10 -11.
¶3 The agency issued two Standard Form (SF) 50s dated June 26, 2016, one
promoting the app ellant to the GS -14 Nuclear Engineer position , and the second
cancelling that promotion. Id. at 7-8. Both had the same effective date, with the
cancellation SF -50 indicating in the R emarks section that it was due to
“Administrative Error. ” Id. The agen cy’s Human Resources Office contacted the
appellant by telephone on July 12, 2016, and by letter on July 15, 2016, and
informed him that the agency canceled the promotion because his application was
erroneously accepted , given that he was not sufficiently qualified to complete the
duties of the position at the GS -14 level. IAF, Tab 1 at 5; Tab 5 at 15 -16. The
appellant filed the instant appeal on August 25, 2016, alleging that he suffered a
demotion or a reduction in grade or pay as a result of the agency ’s decision
rescinding his promotion. IAF, Tab 1.
¶4 The administrative judge issued an initial decision that dismissed the appeal
for lack of Board jurisdiction. IAF, Tab 7, Initial Decision (ID). The
administrative judge found that an authorized offici al actually appointed the
appellant to the promotion position and that the appellant took action denoting his
acceptance of the position. ID at 7 (citing Levy v. Department of Labor ,
118 M.S.P.R. 619 , ¶¶ 7, 10 (2012 )). However, he found that , based on the totality
of the circumstances, the appellant failed to show by preponderant evidence3 that
3 The administrative judge correctly observed that an appellant chall enging an adverse
action (here, the alleged reduction in grade or pay) is ordinarily required to make
nonfrivolous allegations of jurisdiction over his appeal to proceed to a jurisdictional
hearing, at which he must prove Board jurisdiction by a prepondera nce of the evidence.
ID at 6 n.4 (citing Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1344
(Fed. Cir. 2006) ). However, because the appellant waived his right to a hearing, the
administrative judge directly proceeded to the ult imate jurisdictional question –that is,
whether the appellant proved, by preponderant evidence, that the Board has jurisdiction
over his appeal. Id. We find no error with the administrative judge’s determination in
this regard.
4
the promotion became effective prior to bei ng cancelled. ID at 7. He n oted that
both the promotion SF -50 and the cancellation SF -50 had effective dates of
June 26, 2016, and that aside from the appellant ’s self -reported statement that he
completed self -study training courses without receiving ins tructions to do so,
there was no evidence that the appellant: received an orientation, a performance
plan, a new office , or reporting instructions ; assumed the duties of the Nuclear
Engineer position ; received pay at the GS -14 level ; or performed any other duties
in the promotion position. ID at 8 -9. Accordingly, the administrative judge
found that the agency properly revoked or cancelled the appellant ’s promotion
before he entered on duty or performed in the position. ID at 9 -10. He also
found that the agency cancelled the promotion immediately, effectuating a
cancellation SF -50 the same day as the effective date of the promotion SF -50,
even though the appellant was not notified until more than 2 weeks later. ID
at 10.
¶5 The appel lant filed a petition for review , and the agency filed a response.
Petition for Review (PFR) File, Tabs 1, 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 On review, the appellant challenges the decision below, arguing that his
promotion to the GS -14 position was effectuated 3 weeks prior to being
cancelled. PFR File, Tab 1 at 4 -5. He argues that , despite sharing the same
effective date with the promotion SF -50, the cancellation SF -50 was not actually
completed until some point after he received verbal and writte n notification of the
cancellation on July 12, 2016 , and July 15, 2016 , respectively, and was later
“backdated ” to the June 26, 2016 effective date. Id. at 4. To support his
contention, the appellant submits webpage screenshots from a number of agency
personnel management systems that he claims show that his promotion was still
in effect up to 3 weeks after the effective date of the promotion and cancellation
SF-50s. Id. at 4, 6 -10; PFR File, Tab 10 at 9 -14.
5
¶7 On May 5, 2017, the Clerk of the Board issued an order instructing the
parties to submit additional evidence and argument addressing whether the
promotion in question was properly revoked before it became effective. PFR
File, Tab 8. Specifically, the order directed the parties to provide evid ence
concerning whether the selecting official (SO) knew that he was promoting the
appellant to the GS -14 position, and when, exactly, the promotion was cancelled.
Id. at 3-6. The order further instructed the parties to submit all documents and
communica tions related to the GS -14 promotion, as well as additional sworn
affidavits from the individuals responsible for effectuating the promotion and
cancellation. Id. at 4-5. The appellant and the agency both submitted evidence
and argument , which we have co nsidered . PFR File, Tabs 9 -12.
¶8 The Board has jurisdiction to review an appeal of a reduction in grade or
pay. See 5 U.S.C. § 7512 . A cancellation of an effected promotion constitutes an
appealab le reduction in grade. Levy , 118 M.S.P.R. 619 , ¶ 6. If the promotion to a
higher grade was not effected, however, there was not an app ealable reduction in
grade or pay. Id.; Clark v. Department of the Interior , 68 M.S.P.R. 453 , 457
(1995). To establish jurisdiction over an appeal from the cancellation of a
promotion as a reduction in grade, the appellant must show that: (1) the
promotion actually occurred; that is, it was approved by an authorized appointing
official aware that he or she was making the promotion; (2) the appellant took
some action denoting acceptance of the promotion; and (3) the promotion was not
revoke d before it became effective.4 Levy , 118 M.S.P.R. 619 , ¶ 10.
¶9 As noted, t he administrative judge determined, based on the record before
him, that the appellant satisfied the first two elements set forth in Levy . ID at 7.
On review, in response to the Clerk of the Board’s order, the agency furnished
4 The appellant also must show that he meets the statutory definition of an employee
with Board appeal rights. See 5 U.S.C. §§ 7511 (a)(1), 7513(d), and 770 1. That issue is
not in dispute in this case. ID at 7.
6
additional evidence and argument regarding whether the SO knew that he was
promoting the a ppellant to the GS -14 level when the promotion was offered. The
agency submitted a declaration from the SO responsible for interviewing and
hiring the applicants for the GS -13/14 Nuclear Engineer position. PFR File,
Tab 12 at 30 -37. The SO declared that when he selected the appellant it was
never his intention to promote him to the GS -14 level. Id. at 31, ¶ 5. Instead, the
SO declared that he intended to hire the appellant at the GS -13 level, with the
expectation that he would be promoted to the GS -14 level only after completing a
series of necessary technical training s over a period of approximately 18 months.
Id.
¶10 The SO further declared that he first informed the appellant that he was
under consideration only for the position at the GS -13 level dur ing the interview,
at which he told the appellant that , if hired , he would receive specialized training
as a GS -13 for 18 months, at the end of which he could be promoted to the GS -14
level. Id. at 31 -32, ¶¶ 8-9, 41. The SO corroborated this by providing a copy of
the interview questions asked of the appellant, including a question concerning
whether the appellant had any concern about the time and effort it would take to
qualify for promotion. Id. at 41. The SO a lso contacted the other hiring panel
members by email, who confirmed that it was mentioned during the interview that
the appellant would need to first serve at the GS -13 level before promotion, even
though the appellant expressed some interest in being con sidered for the GS -14
position. Id. at 46 -54.
¶11 According to the SO’s declaration, f ollowing receipt of the certificates of
eligibles for the GS -13/14 Nuclear Engineer position, the SO received email
instructions for how to create a profile and access the a gency ’s hiring system
software , which he was unfamiliar with and had not previously used. Id.
at 32-33, ¶¶ 14-15. After accessing the hiring system software , the SO saw a
screen indicating that he could “select ” candidates under the certificate of
eligib les for the position, which was identified on the screen as “Grade 13, 14 .”
7
Id. at 33, ¶ 17. The SO selected the appellant for the position, completing his role
in the hiring process. Id. at 33, ¶¶ 17 , 19. What was not readily discernible to
the SO, ho wever, was the fact that , although the screen identified the position as
“Grade 13, 14 ,” the appellant had limited his application to consideration at the
GS-14 level only, and so the SO ’s selection unwittingly resulted in promoting the
appellant to the GS -14 level, instead of lateral ly hiring him at the GS -13 level
with promotion potential to the GS -14 level, as the SO intended. Id. at 33 , ¶¶ 17,
56.
¶12 According to a declaration made under penalty of perjury by an agency
Human Resources (HR) Specialist , she received a notification informing her of
the SO ’s selection . PFR File, Tab 11 at 6, ¶ 10. On June 15, 2016, the HR
Specialist emailed the appellant a job offer at the GS -14 level, and the appellant
replied, accepting the offer the same day. Id. at 6 , ¶ 12, 20 -21. The HR
Specialist then emailed the SO inform ing him that the appellant had accepted the
position at the GS -14 level. Id. at 6, ¶ 13. The SO replied within 26 minutes,
indicating that the promotion was a mistake because the appellant was not
qualified at the GS -14 level and expressing that he had intended to hire the
appellant as a GS -13 with promotion potential to the GS -14 level. See id.
at 23-24.
¶13 On June 22, 2016 –4 days before the ef fective date of the promotion –the SO
submitted a formal r equest to reconsider the agency’s qualification decision
regarding the appellant. PFR File, Tab 12 at 61 -65. In his request, the SO
reiterated that he had promoted the appellant to the GS -14 position in error and
had intended to hire him at the GS -13 lev el with promotion potential to GS -14.
Id. at 62. On June 24 , 2016, the Acting Director of the agency’s HR Office
replied indicating that he would not be able to process the reconsideration request
before the effective date of the promotion and that the p romotion would need to
be placed on hold in the interim. Id. at 25 -26. On July 8, 2016 , the agency
decided that the appellant should not have been referred on the GS -14 certificate
8
of eligibles, and the agency rescinded the offer and cancelled the compet itive
service certificate . Id. at 28-29. The agency subsequently informed the appellant
of the rescission by phone on July 12th and by letter on July 15th. Id. at 80 -81,
¶¶ 10, 14; IAF, Tab 1 at 12.
¶14 The Board ’s decision in Hoever v. Department of the Navy , 115 M.S.P.R.
487 (2011) , offers some instructive guidance applicable to the instant case . In
Hoever , the administrative judge reversed the agency ’s action cancelling the
appellant ’s promotion and a 10% raise in favor of a 6.43% raise and promotion,
finding that the appellant suffered a reduction in pay as a result of the
cancellation. Hoever , 115 M.S.P.R. 487 , ¶¶ 2 -5. Reversing the administrative
judge, the Board found that the 10% raise was not “approved by an authorized
appointing official aware that he or she was making the promotion or
appointment, ” even though a “recommending official ” authorized the offer and an
HR Specialist conveyed it to the appellant, who accepted it. Id., ¶¶ 9, 15 -17.
¶15 The Board in Hoever initially acknowledged that it examines t he totality of
the circumstances surrounding an appointment to determine whether the requisite
“last act ” of an official with appointment power had taken place, for the
appointment to be considered effective. Id., ¶ 8. The Board determined that the
10% r aise had not been approved because that agency ’s promotion process
required that higher -level officials in two different departments must sign off on
the promotion for it to become effective. Id., ¶¶ 9-12, 17 -18. Because the
promotion was never approved, the appellant did not suffer an appealable
reduction in pay when his erroneous 10% raise was cancelled, and his salary was
reset to the 5% increase (and eventually, to the 6.43% increase) level. Id., ¶ 18.
¶16 As described in the agency ’s sworn declarations, the SO in the instant case
selected the appellant using the agency ’s hiring s ystem software. PFR File,
Tab 12 at 33, ¶¶ 17 , 19. The selection notification was then transmitted to an HR
Specialist responsible for contacting the selec ted candidate to offer the position.
PFR File, Tab 11 at 6, ¶ 2. Because the SO averred that he did not intend to
9
promote the appellant to the GS -14 position and was not even aware that he was
doing so when he conveyed the selection to the HR Specialist using the agency ’s
hiring system software, the appellant ’s promotion was never “approved by an
authorized appointing official aware that he [] was making the promotion. ” Levy ,
118 M.S.P.R. 619 , ¶ 7; see Clark , 68 M.S.P.R. at 457. As a result, based on the
totality of the circumstances, the requisite “last act” to complete the appellant’s
promotion to the GS -14 position never occurred and never became effective, even
if the offer was later mistakenly conveyed to the appellant by the HR Specialist.
See Hoever , 115 M.S. P.R. 487 , ¶¶ 9, 15 -17; Scott v. Department of the Navy ,
8 M.S.P.R. 282 , 287 (1981) .
¶17 As such, we modify the initial decision to find that the appell ant failed to
prove, by preponderant evidence, that the Board has jurisdiction over his appeal
as a reduction in grade or pay, because he has not demonstrated that the
promotion actually occurred; that is, it was approved by an authorized appointing
offici al aware that he was making the promotion. Levy , 118 M.S.P.R. 619 , ¶ 10.
Alternatively, although we are modifying the initial decision to find that the
Board lacks jurisdiction over the appeal for the reasons provided, we still affirm
the administrative judge’s jurisdictional finding that the record reflects that the
agency p roperly canceled or revoked that appellant’s promotion before he ever
entered on duty or performed in the position. ID at 9 -10; IAF, Tabs 1, 5 -6; see
National Treasury Employees Union v. Reagan , 663 F.2d 239 , 252 (D.C. Cir.
1981).
¶18 Accordingly, we deny the petition for review and affirm the initial decision
as modified.
10
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit m ay result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is th e appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 w hich option is most appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information abo ut the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represe ntation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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. I f the action involves a claim of
12
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
13
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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C . 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for in formation regarding pro bono representation
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
for Merit Systems Protection Board appellants before the 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/Cou rtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EAKINS_REGGIE_L_SF_0752_16_0714_I_1_FINAL_ORDER_2016909.pdf | 2023-03-30 | null | SF-0752 | NP |
3,341 | https://www.mspb.gov/decisions/nonprecedential/BAKER_LYNN_RAY_CH_0731_17_0181_I_1_FINAL_ORDER_2016917.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LYNN RAY BAKER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0731 -17-0181 -I-1
DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andre Paul Gaston , Esquire, Oakbrook Terrace, Illinois, for the appellant.
Darlene M. Carr , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the suitability determination and associated action of the Office of
Personnel Management (OPM) . 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 affe cted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Th erefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective November 2, 2014, the appellant was appointed to the position of
Police Officer, GS -05, with the Department of Veterans Affairs (DVA). Initial
Appeal File (IAF), Tab 9 at 414. In a letter dated August 2, 2016, OPM notified
the appellant that information discovered during the course of a background
investigation requested pursuant to his appointment raised a serious question as to
his suitability for Federal em ployment, and that he was being charged with
“Material, intention false statement, or deception or fraud in examinatio n or
appointment.” IAF, Tab 5, 106 -07. In addition, OPM proposed th e following
actions: c ancelation of eligibility; cancelation of any reinstatement eligibility
3
resulting from the appellant’s present appointment; and debarment for a period of
up to 3 ye ars. Id. at 106.
¶3 In the summary of charges , OPM explained by way of background that the
appellant was fired from his position with the Chicago Police Department (CPD)
on December 6, 2013, because he did not provide accurate information on an
employment questionnaire concerning his prior employment wit h the Berwyn
Police Department, and because he had violat ed CPD rules and regulations by
failing to notify his employer that he was subject to a criminal investigation, by
failing to cooperate in a criminal investigation, and by being arrested. Id. at 109.
In light of the appellant’s termination from CPD, OPM determined that the
appellant made material and false statements regarding his employment history on
five separate occasions. Id. at 110-12. We will discuss those incidents below.
¶4 First, w hen the appellant initially applied for the DVA Police Officer
position on September 8, 2014 , he answered “no” to Question 12 in the Optional
Form 306 (OF -306), Declaration for Federal Employment which asked the
following:
During the last 5 years, have you been fired from any job for any
reason, did you quit after being told that you would be fired, did you
leave any job by mutual agreement because of specific problems, or
were you debarred from Federal employment by [OPM] or any other
agency? If “YES” use item 16 to provide the date and explanation of
the problem, reason for leaving, and the employer’s name and
address.
IAF, Tab 9 at 446. The appellant signed the OF -306 on September 8, 2014,
certifying that “to the best of my knowledge and belief, all of the information on
and attached to this Declaration for Federal Employment . . . is true, correct,
complete, and made in good faith.” Id. at 447.
¶5 Second , on October 10, 2014, the appellant completed a Standard Form 85P
(SF-85P), Questionnaire for Public Trust Positions, through the Electronic
Questionnaires for Investigative Process (e -QUIP). Id. at 421 -44. Section 12 of
the SF -85P similarly asked the applicant if, in the last 7 years, any of the
4
following happene d to him: “(1) Fired from a job; (2) Quit after being to ld you’d
be fired; (3) Left a job by mutual agreement following allegations of
unsatisfactory performance; (5) Left a job for other reasons under unfavorable
circumstances.” Id. at 433. The appella nt responded “No.” Id. By signing the
SF-85P, the appellant certified under penalty of perjury, “My statements on this
form, and any attachments to it, are true, complete, and correct to the best of my
knowledge and belief and are made in good faith.” Id. at 442.
¶6 Third , on November 3, 2014, upon his appointment to the Police Officer
position, the appellant again signed the previously submitted OF-306, thus
recertifying his previous answers, including his response to Question 12. Id.
at 448-49.
¶7 Fourth , when the appellant participated in a personal interview with an
OPM investigator on December 1, 2015, the appellant stated that he had never
been fired from a job, left a job after being told he would be fired, or left a job by
mutual agreement aft er allegations of unsatisfactory performance or other
unfavorable circumstances. Id. at 383 . However, when confronted by the
investigator about his termination from the CPD , the appellant responded that he
was not terminated ; instead, he left voluntarily and was eligible for rehire, and he
did not have any issues while employed at the CPD . Id.
¶8 Fifth , the appellant completed a third OF-306 on January 23, 2016, when he
applied for a Deportation Officer position with the Department of Homeland
Security . Id. at 273 -74. In completing this OF -306, he again answered “ No” to
question 12. Id.
¶9 OPM considered the appellant’s response to its proposal in which he
asserted two main arguments: (1) that he resigned from CPD when he was
notified of his arrest and prior to being terminated ; and (2) that he relied on an
attorney’s legal advice both in completing his subsequent Federal employment
application and in believing that, because he was acquitted of all charges, he
would not have to provide any information re garding the arrest. IAF, Tab 5
5
at 53-85. The appellant claimed that, because his termination was incidental to
the arrest, the expungement meant that “any collateral consequences should not
have been provided in a job application.” Id. at 59.
¶10 On Janua ry 18, 2017, OPM issued a decision finding the appellant
unsuitable for Federal employment based on the charge of material, intentional
false statement, or deception or fraud in examination or appointment. IAF, Tab 5
at 18-21. OPM directed DVA to separat e the appellant within 5 business day s of
receiving OPM’ s decision. Id. OPM also canceled any eligibilities the appellant
may have had for appointment or reinstatement to any position in competitive
service, excepted service that noncompetitively convert s to the competitive
service, or career appointment to positions in the Senior Executive Service, and
debarred him from competition for, or appointment to, any covered position until
January 18, 2020. Id.
¶11 The appellant filed a Board appeal regarding OPM’s dec ision and requested
a hearing. IAF, Tab 1. On ap peal, the appellant reasserted the arguments he
raised before OPM. IAF, Tab s 1, 12. After holding a hearing, the administrative
judge issued an initial decision affirming OPM’s decision . IAF, Tab 17, Initial
Decision (ID). The administrative judge found that OPM proved by preponderant
evidence that the appellant provided incorrect information , as alleged, that he
knowingly provided incorrect information with the intention of de frauding the
agency , and that any belief by the appellant that he could answer “no” to the
questions regarding his prior employment was unreasonable . ID at 15 -17. The
administrative judge further found that the appellant’s “failure to disclose his
prior termination was blatantly misleading and more consistent with a conscious
purpose to avoid learning the truth than a willingness to disclose truthfu l
information.” ID at 16. Accordingly , the administrative judge sustained the
charge. ID at 16. After fi nding that OPM proved a nexus between the appellant’s
falsification and the integrity and efficiency of the service, the administrative
judge affirmed the suitability determination. ID at 16 -18.
6
¶12 The appellant has filed a petition for review. Petition fo r Review (PFR)
File, Tab 1. Although OPM was granted an extension of time to file a response to
the appellant’s petition, it did not do so. PFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly sustained OPM’s charge of Material,
Intentional False Statement, or Deception or Fraud in Examination or
Appointment.
¶13 To prevail in a negative suitability determination appeal, OPM must
demonstrate by preponderant evidence that the appellant’s conduct or character
may ha ve an im pact on the integrity or efficiency of the service, based on one or
more of the specific factor s listed in 5 C.F.R. § 731.202 (b). Hawes v. Office of
Personnel Management , 122 M.S.P.R. 341, ¶ 5 (2015); see 5 C.F.R.
§§ 731.101 (a), 732.202(a), 731.501(b). The Board has jurisdiction to review all
aspects of a suitability determination, including whether the charged conduct
renders an individual unsuitable for the position in question. Hawes ,
122 M.S.P.R. 341, ¶ 5. To establish unsuitability based on a charge of
falsification, OPM must prove by preponderant evidence that the information was
incorrect and that the appellant knowingly provided incorrect information with
the intent of defrauding. Id., ¶ 21.
¶14 As the administrative judge found , the record evidence clearly shows that
the appellant was terminated from his Police Officer position with the CPD . IAF,
Tab 15, Hearing C ompact Disc (HCD) (Testimony of CPD Chief Captain ); Tab 5
at 133. The appellant’s termination was based on his violation of agency rules
and regulations, including a failure to notify the department that he was the
subject of a criminal investiga tion, a failure to cooperate in a criminal
investigation by Berwyn Police Department, his arrest by the Berwyn Police
Department, and his provision of five false answers to questions on his CPD
Personnel History Questionnaire, including false statements ab out his termination
from his positio n with the Berwyn Police Depart ment. IAF, Tab 9 at 198 -202.
7
Thus, because the record evidence shows that the CPD terminated the appellant
based on multiple violations of rules and regulations , we agree with the
adminis trative judge that his termination from the C PD was not a “legal
consequence associated with his arrest.” IAF, Tab 5 at 197 -99.
¶15 The appellant reasserts that he was advised by his legal counsel that he did
not have to disclose his termination because his arrest record was expunged , and
he argues that the administrative judge misinterpreted the Board’s decision in
Doerr v. Office of Personnel Management , 104 M.S.P.R. 196 (2006). PFR File,
Tab 1 at 10. The appellant contends that Doerr establishes that there is no intent
to deceive when one has received legal advice and relies on it. Id. at 11. We are
not persuaded by the appellant’s argument.
¶16 In Doerr , the appellant was charged with possession with intent to
distribute a controlled substance and use of possession of drug paraphernalia.
104 M.S.P.R. 196 , ¶ 2. The appellant subsequently entered into an abeyance
agreement that did not inc lude a conviction. Id. There, OPM charged the
appellant with falsely completing her application because she indicated that she
had not been convicted of a crime , imprisoned, or on probation or parole. Id.,
¶ 3. The Board found that she reasonably relied on her attorney’s advice that ,
under Utah law , she could answer “no” to questions regarding convictions for
crimes or being on probation because the pretrial diversion program she
participated in was quite different than probation. Id., ¶ 6. The a ppellant also
provided evidence that she specifically sought advice from her criminal lawyer
before completing the application. Id. Further, her attorney’s advice was
consistent with Utah law. Id.
¶17 Here, however , the relevant Illinois law does not specif ically indicate that,
when an arrest has been expunged, an applicant for a position can state they were
never terminated from a position . IAF, Tab 1 3 at 7 -67. In addition , the
appellant’s termination from the CPD was not solely based on the arrest in
question, but instead was based on multiple violations of the police department’s
8
rules and regulations . IAF, Tab 9 at 198 -202. Moreover, unlike in Doerr , the
administrative judge in this case found the appellant’s testimony that he
specifically asked his a ttorney how to respond to questions regarding his
employment to be not credible . ID at 13.
¶18 The appellant challenges the administrative judge ’s determination that he
was not credible , and he asserts that he answered truthfully, though hesitantly , as
he remembered the details. PFR File, Tab 1 at 11. The appellant appears to
assert that his delayed responses were the result of his diagnosis of post-traumatic
stress disorder stemming from his military service. Id. However, the
administrative judg e thoroughly rev iewed the hearing testimony, provided a
detailed discussion of the evidence and testimony as required under Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987),3 and found the appellant’s
testimony that his misrepresentations were not intentional to be not credible, ID
at 13. We discern no basis to overturn the administrative judge ’s credibility
determination s, which were based in part on her observations of witness
demeanor . See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373
(Fed. Cir. 2016) (finding that the Boa rd must defer to an administrative judge ’s
demeanor -based credibility determinations regardless of whether demeanor is
explicitly discussed).
¶19 Therefore , we find that the record evidence shows that the appellant knew
he was terminated from the CPD for var ious reasons , including an arrest , and that
his negative responses to whether he had been fired were incorrect. While the
3 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version s he believes, and explain in detail why she found the chosen version more
credible , considering such factors as: (1) the witness’ s opportunity and capacity to
observe the event or a ct in question; (2) the witness’ s character; (3) any prior
inconsistent statemen t by the witness; (4) a witness’ s bias, or lack of bias; (5) the
contradicti on of the witness’ s version of events by other evidence or its consistency
with other evidence; (6) the inhere nt improbability of the witness’ s version of events;
and (7) the witness’ s demeanor. Hillen , 35 M.S.P.R. at 458.
9
appellant continues to argue that he did not intend to provide inaccurate
information, it is clear from the record that he knew that he did not leave his
employment with the CPD under favorable circumstances and that he failed to
indicate this at any time during his employment process for the DVA Police
Officer position. Accordingly, we conclude that the appellant has shown no basis
upon which to disturb the initial decision .
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
4 Since the issuance of the init ial decision in this matter, the Board may have updated
the notice 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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
11
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, 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
12
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that pr ovided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to No vember 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BAKER_LYNN_RAY_CH_0731_17_0181_I_1_FINAL_ORDER_2016917.pdf | 2023-03-30 | null | CH-0731 | NP |
3,342 | https://www.mspb.gov/decisions/nonprecedential/POUR_MASSOUD_N_SF_0752_14_0672_B_2_FINAL_ORDER_2016087.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MASSOUD N. POUR,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -14-0672 -B-2
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Massoud N. Pour , Concord, California, pro se.
Michael L. Halperin , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review2 of the initial decision, which
sustained his removal. On petition for review, the appellant asserts that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 The appellant requests that the Board consider this petition along with an earlier
petition for review he filed, which resulted in his case being remanded. Petition for
Review (PFR) File, Tab 3 at 3. However, the previous petition was based on an earlier
2
administrative judge erred in sustaining the charges, finding the penalty of
removal reasonable, and denying his whistleblower retali ation defense.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 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
initial decision , which the Board vacated, not the one now at issue. Accordingly, we
deny the appellant’s request.
3 In his petition, the appellant alleges that the administrative judge abused his discretion
by denying a number of the appellant’s requested witnesses and exhibited bias toward
him through his rulings. PFR File, Tab 3 at 3 -4, 6. An administrative judge h as wide
discretion to control the proceedings, including the authority to rule on witnesses.
5 C.F.R. § 1201.41 (b)(8). Specifically, an administrative judge may exclude witnesses
when it has not been shown that their testimony would be relevant, material, and
nonrepetitious. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 , ¶ 12 (2013).
To obtain reversal of an initial decision on the ground that the administrative judge
abused his discretion in excluding evidence, the petitioning party must show on review
that relevant evidence, which could have affected t he outcome, was disallowed.
Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48 , ¶ 12 (2004), aff’d , 121 F.
App’x 865 (Fed. Cir. 2005). The appellant’s vague assertion on review that the
administrative judge erred in not allowing “any” of his witnesses without providing
justification is not supported by the record , nor has the appellant shown that the
testimon y of the excluded witnesses was relevant and could have affected the outcome
of the case.
As to the appellant’s claim that the administrative judge was biased against him, the
appellant must overcome the presumption of honesty and integrity that accompan ies
administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R. 382 ,
386 (1980). An administrative judge’s conduct during the c ourse 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). The appellant’s claims, none of which involves extrajudicial conduct, do not
overcome the presumption of honesty and int egrity that accompanies administrative
adjudicators. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411 , ¶ 5
(2010).
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 review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts wi ll rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
5
representative in 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 claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
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 B oard’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The 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 website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | POUR_MASSOUD_N_SF_0752_14_0672_B_2_FINAL_ORDER_2016087.pdf | 2023-03-29 | null | SF-0752 | NP |
3,343 | https://www.mspb.gov/decisions/nonprecedential/MURPHY_CONSOLIDATION_2_DA_0841_16_0524_I_1_FINAL_ORDER_2016157.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MURPHY CONSOLIDATION 2,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0841 -16-0524 -I-1
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David L. Murphy , Rockwall, T exas , for the appellants .
Jane Bancroft , 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 s have filed petition s for review of the initial decision, which
affirmed final decisions by the Office of Personnel Management (OPM) finding
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
that they jointly received an overpayment of benefits under the Federal
Employees’ 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 regulation or the erron eous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in th ese appeal s, we conclude that the
petitioner s have not established any basis under section 1201.115 for granting the
petition s for r eview. Therefore, we DENY the petition s for review and AFFIRM
the initial decision, except as MODIFIED to address the appellants’ argument that
OPM should recover the overpayment from their bank.
BACKGROUND
¶2 In final decisions dated July 25, 2016, OPM fo und that the appellants,
FERS annuitants David Murphy and Karen Dahlstrom, jointly received an
overpayment of $5,486.65 in annuity benefits when OPM erroneously authorized
and deposited nine annuity payments intended for another FERS annuitant into
their j oint bank account between May 2013 and February 2014. Murphy
Consolidation 2 v. Office of Personnel Management , MSPB Docket No.
DA-0841 -16-0524 -I-1, Consolidat ion Appeal File (CAF), Tab 3 at 5 -7, Tab 4 at
5-7. OPM indicated that the appellants’ financial institution returned $2,800 t o
OPM, leaving a joint overpayment balance of $2,686.65 .3 CAF, Tab 3 at 6 -7, Tab
3 According to OPM, it contacted the appellants’ ba nk regarding the misdirected funds,
and a bank representative informed OPM that an authorized account holder had
3
4 at 6-7. OPM also noted that, from August to November 2014, it
administratively offset each of the appellants’ monthly annuity payments to
recover $1,343. 32 from each of them but that, on June 15, 2016, it refunded to
them the recovered amounts because they had not received due process prior to
the administrative offset .4 CAF, Tab 3 at 6, Tab 4 at 6. Thus, OPM found that
the appellants still h ad a joint overpay ment balance of $2,686.65 and proposed to
collect $1,343.32 from Ms. Dahlstrom’s annuity in 13 monthly installments of
$100.00 and a final instal lment of $43.32 and $1,343.33 from Mr. Murphy’s
removed the funds from the appellants’ account. CAF, Tab 3 at 6, Tab 4 at 6. In a
letter dated June 30, 2014, OPM asked the bank to withhold $2,800 from a deposit
being made to Mr. Murphy’s account on July 1, 2014, and indicated that OPM held “the
bank harmless of any liability.” CAF, Tab 3 at 8, Tab 4 at 12. According to OPM, the
bank “returned $2,800.00 to OPM per [Department of the] Treasu ry regulations.” CAF,
Tab 3 at 6, Tab 4 at 6.
4 Prior to issuing the July 25, 2016 final decisions at issue in this appeal, OPM issued
undated final decisions advising the appellants that they had received a joint
overpayment of $5,486.64, that their financial institution had returned $2,800 of the
over payment, and that OPM had collected the remaining balance of the overpayment
from their annuities through administrative offset. Murphy v. Office of Personnel
Management , MSPB Docket No. DA -0841 -16-0345 -I-1, Initial Appeal File, Tab 1
at 6-9; Dahlstrom v. Office of Personnel Management , MSPB Docket No. DA -0841 -16-
0346 -I-1, Initial Appeal File, Tab 1 at 6-9. The appellants appealed OPM’s decisions to
the Board, and the administrative judge consolidated the appeals. Murphy
Consolidation v. Office of Person nel Management , MSPB Docket No. DA -0841 -16-
0353 -I-1, Consolidat ion Appeal File (0353 CAF), Tab 1. OPM subsequently notified
the administrative judge that it had rescinded the final decisions and moved that the
appeal s be dismissed for lack of jurisd iction . 0353 CAF, Tab 7 at 4. The
administrative judge found, however, that OPM had not yet refunded to the appellants
the amounts collected through administrative offset and, therefore, that it had not
completely rescinded the final decisions. 0353 CAF, Tab 8, Initial Decision at 2. She
dismissed the appeal s without prejudice for 60 days to allow OPM the opportunity to
refund the aforementioned funds to the appellants . Id. at 2-3. Following automatic
refiling of the appeal s, the administrative judge issued an initial decision dated
September 7, 2016, finding that OPM had completely rescinded the undated decisions at
issue , and dismissed the appeal s for lack of jurisdiction. Murphy Consolidation v.
Office of Personnel Management , MSPB Docket No. DA -0841 -16-0353 -I-2, Appeal
File, Tab 1, Tab 6, Initial Decision . The appellants did not file a petition for review of
the i nitial decision dismissing those appeal s for lack of jurisdiction.
4
annuity in 13 monthly installments of $100.00 and a final installment of $43.33.
CAF, Tab 3 at 6 -7, Tab 4 at 6 -7.
¶3 The appellants appealed OPM’s final decisions , and the administrative
judge consolidated the appeals for adjudication. Dahlstrom v. Office of Personnel
Management , MSPB Docket No. DA-0841-16-0522-I-1, Initial Appeal File,
Tab 1; Murphy v. Office of Personnel Management , MSPB Docket No. DA-0841 -
16-0523-I-1, Initial Appeal File, Tab 1; CAF, Tab 1. After holding their
requested hearing, the administrative judge issued an initial decision finding that
OPM established by preponderant evidence that it issued to the appellants’ joint
bank account $5,486.65 from the Civil Service Retirement Fund, to which they
were not enti tled. CAF, Tab 21, Initial Decision (ID) at 2 -4. She further found
that the appellants failed to prove their affirmative defense of whistleblower
reprisal and failed to establish that they were entitled to waiver of the
overpayment or adjustment of the r epayment schedule. I D at 4 -7. Accordingly,
she affirmed OPM’s July 25, 2016 final decisions. ID at 8.
¶4 The appellant s have filed petitions for review challenging the administrative
judge’s findings and arguing that they did not receive a fair hearing, that OPM
violated their constitutional rights and failed to follow correct procedures by
taking the administrative offset action, and that OPM should collect the
overpayment from the bank . Dahlstrom v. Office of Personnel Management ,
MSPB Docket No. DA-0841-16-0522-I-1, Petition for Review (0522 PFR) File,
Tab 1 at 3-9; Murphy v. Office of Personnel Management , MSPB Docket No.
DA-0841 -16-0523-I-1, Petition for Review (0523 PFR) File, Tab 1 at 3-8. The
agency has responded in opposition to their petitions for review.5 Murphy
5 In December 2017, while his petition for review was pending before the Bo ard, OPM
submitted an additional pleading and evidence showing that it had erroneously collected
14 installments of $43.33 and 13 installments of $56.67 from Mr. Murphy’s annuity but
that it had refunded the total amount collected of $1,343.33 on December 14, 2017.
0523 PFR File, Tab 2. Because the submission was unavailable before the record
closed below, we have accepted it into the record on review. See Avansino v. U.S.
5
Consolidation 2 v. Office of Personnel Management , MSPB Docket No.
DA-0841 -16-0524-I-1, Petition for Review File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that OPM proved the existence and
amount of the overpayment .
¶5 OPM bears the burden of showing the existence and the amount of an
annuity overpayment by a preponderance of the evidence.6 Vojas v. Office of
Personnel Management , 115 M.S.P.R. 502 , ¶ 10 (2011); see 5 C.F.R.
§ 845.307 (a). The administrative judge found that OPM met this burden by
showing that it issued nine payments between May 2013 and February 2014 ,
intended for another annuitant , totaling $5,486.65 to the bank account in which
the appellants receive their annuity payments. ID at 3-4. The administrative
judge further found that OPM submitted preponderant evidence showing that it
paid the appellants their regular annuity payments during that period . ID at 4.
¶6 On review, the appellants do not challenge the administrative judge’s
determination that OPM established that it deposited nine annuity payments
totaling $5,486.65 into their joint account between May 2013 and February 2014 ,
in addition to their regular annuities . 0522 PFR File, Tab 1 at 3 -9; 0523 PFR
File, Tab 1 at 3 -8. We have reviewed the record and agree wi th the
administrative judge that OPM provided preponderant evidence showing that nine
payments intended for another annuitant , in a total amount of $5,486.65 , were
directly deposited into the checking account in which the appellants receive d their
annuity payments. CAF, Tab 3 at 15, Tab 4 at 12, Tab 16 at 4 -15. We further
agree with the administrative judge that OPM established by preponderant
Postal Service , 3 M.S.P.R. 211 , 214 (1980) (providing that the Board will not consider
evidence submitted for the first time with the petition for review absent a s howing that
it was unavailable before the record was closed despite the party’s due diligence).
6 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
6
evidence that the appellants received their regular annuity payments during th at
timeframe . CAF, Tab 16 at 18 -25, 29-31, 33-41, 45 -46. Therefore, we find no
basis to disturb the administrative judge’s finding that OPM proved the existence
and amount of the overpayment by preponderant evidence. ID at 4.
¶7 The appellants argue , however, that the administrative judge erred in
rejecting their argument that a “misdirected payment” does not constitute an
“overpayment ” and in finding that the appellants received an “overpayment”
because OPM’s records prove that they never received an “ increase in benefits
(which would indicate an ‘overpayment’ ).” 0522 PFR File, Tab 1 at 5 -7;
0523 PFR File, Tab 1 at 5 -7. We agree with the administrative judge that these
arguments are unavailing. An overpayment debt under FERS occur s when an
individual is paid benefits from the Civil Service Retirement Fund in the absence
of entitlement or in excess of the amount to which that individual is properly
entitled. See 5 C.F.R. §§ 845.102 , 845.202, 845.203. Here, the appellants
received benefits from the Civil Service Retirement Fund to which they were not
entitled when OPM erroneously deposited annuity payments owed to another
annuitant into their joint bank account . Consequently , they receive d an
“overpayment” under FERS, and their arguments on review provide no basis to
disturb the initial decision.
The administrative judge correctly found that the appellants failed to prove their
whistleblower reprisal affirmative defense.
¶8 The administrative judge denied the appellants’ whistleblower reprisal
affirmative defense, finding that they were not employees or applicants for
employment protected from whistleblower retaliation by 5 U.S.C. §§ 2302 (b)(8)
and 2302(b)(9) , and they failed to establish by preponderant evidence that they
made any protected disclosures. ID at 5. On review, the appellants argue that
they are covered by Federal whistleblower protections becau se they are former
employees and that they made a protected disclosure of gross mismanagement
when they disclosed to various entities that OPM “seized funds [] without due
7
process and in violation of regulations from appellant’s annuity.” 0522 PFR File,
Tab 1 at 6 -7; 0523 PFR File, Tab 1 at 6 -7.
¶9 Under the Whistleblower Protection Act of 1989 (WPA), as amended by the
Whistleblower Protection Enhancement Act of 2012 (WPEA) , “an employee,
former employee, or applicant for employment” may seek corrective action from
the Board “with respect to any personnel action taken, or proposed to be taken ,
against such employee, former employee, or applicant for employment, as a result
of a prohibited personnel practice described in section 2302(b )(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D).” 5 U.S.C. § 1221 (a); Hooker v.
Department of Veterans Affairs , 120 M.S.P.R. 629 , ¶ 9 (2014) ; see Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶¶ 12 -13 (2015) (discussing the
parties’ burdens when whistleblower reprisal is raised as an affirmative defense) .7
Although former employees are included among those who can seek corrective
action from the Board, they can not do so for matters occurring after their
employment . See Nasuti v. Merit Systems Protection Board , 376 F. App’x 29,
33-34 (Fed. Cir. 2010) ; Guzman v. Office of Personnel Management , 53 F. App’x
927, 929 (Fed. Cir. 2002)8; see Weed v. Social Security Administration ,
113 M.S.P.R. 221, ¶ 11 (2010) (citing this principle from Guzman with
approval) .9 Section 2302(b)(8) prohibits any employee in a position of authority
from taking, failing to take, or threatening to take “a personnel action with
7 While the appellants did not file an individual right of action appeal, in an appeal of
an other wise appealable action, such as this, an appellant’s claim of whistleblower
reprisal is treated as an affirmative defense .
8 The Board may follow a non precedential de cision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its re asoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453 , ¶ 11 n.5 (2016).
9 We recognize that these cases were decided before the WPEA’s November 27, 2012
enactment but find that they are applicable to our analysis here because the WPEA did
not alter the requirement that a challenged personnel action concern an employee or
applic ant for employment, but not a former employee. See WPEA, Pub. L.
No. 112-199, 126 Stat. 1465 .
8
respect to an y employee or applicant for employment ” because of a protected
disclosure of information “ by an employee or applica nt.” 5 U.S.C. § 2302 (b)(8)
(emphasis added) . Section 2302(b)(9) similarly prohibits personnel action s taken
“against any employee or applicant for employment ” because of certain classes of
protec ted ac tivity. 5 U.S.C. § 2302 (b)(9) (emphasis added) . Therefore , the WPA ,
as amended by the WPEA , does not cover “a claim brought by a former employee
complaining of agency action taken after the termination of employment in
response to a disclosure that was also made after the termination of his
employment. ” Nasuti , 376 F. App’x at 34.
¶10 Here, the record reflects that Mr. Murphy retired from Federal employment
in 2012 and that Ms. Dahlstrom retired from Federal employment in 2009. CAF,
Tab 3 at 19, Tab 4 at 16. In addition, the alleged protected disclosures all
occurred in 2014 , after th ey both retired . CAF, Tab 20 at 2 -45. Therefore, as the
administrative judge correctly determined, the appellants failed to establish an
affirmative defense of whistleblower reprisal because they cannot show that they
were employees or applicants for emp loyment at the time of the alleged
disclosures or the alleged retaliation.10 ID at 5. The appellants’ arguments on
review provide no basis to disturb this finding.11
10 The National Defense Authorization Act for Fiscal Year 2018 (NDAA for 2018),
Pub L. No. 115 -91, 131 Stat. 1283 , was signed into law on December 12, 2017. The
NDAA for 2018 amended 5 U.S.C. § 2302 (f)(1) to provide that a disclosure shall not be
excluded from protection under 5 U.S.C. § 2302 (b)(8) because it was made before the
individual ’s appoint ment or appli cation for employment . NDAA for 2018,
§ 1097(c)(1)(B)(i), 131 Stat. at 1618 (codified at 5 U.S.C. § 2302 (f)(1)(F)) . This
provision does not affect the analysis of the whistleblower reprisal claim in this appeal,
as both the alleged protected disclosures and the agency’s alleged retaliatory acts
occurred after the appellant s’ employment had ended.
11 The administrative ju dge alternatively found that the alleged disclosures were not
protected. However, Mr. Murphy alleged that he made, and threatened to make,
disclosures to OPM’s Office of Inspector General, which might be protected activities
regardless of the content of t he information disclosed. ID at 5; 5 U.S.C.
§ 2302 (b)(9)(C). In light of our finding here, we vacate the administrative judge’s
alternative finding.
9
The administrative judge correctly determined that the appellants are not entitl ed
to waiv er of the overpayment or to adjustment of the repayment schedule.
¶11 Appellant s seeking waiver of an overpayment bear the burden of
establishing their entitlement to such a waiver by substantial evidence.12 5 C.F.R.
§ 845.307 (b). OPM may waive collectin g an annuity overpayment when the
annuitant s are without fault and recovery would be against equity and good
conscience. 5 U.S.C. § 8470 (b); Zucker v. Office of Personnel Management ,
114 M.S.P.R. 288 , ¶ 7 (2010) . Generally, recovery of an overpayment is aga inst
equity and good conscience when any of the fol lowing conditions are met:
(a) recovery would cause the annuitant s financial hardship ; (b) the annuitant s can
show that, due to the notice that such payment would be made or because of the
incorrect payme nt, they either ha ve relinquished a valuable right or ha ve changed
positions for the worse ; or (c) recovery would be unconscionable under the
circumstances. 5 C.F.R. § 845.303 ; see Zucke r, 114 M.S.P.R. 288 , ¶ 7. When the
annuitant s knew or suspected that they were receiving an overpayment, however,
OPM’s set -aside rule applies, and the annuitant s are expected to set aside the
overpaid money pending recovery by OPM. See Boyd v. Office of Personnel
Management , 851 F.3d 1309 , 1313 (Fed. Cir. 2017) . In such a case, recovery of
the overpayment will not be waived absent “exceptional circumstances .” Id.
at 1313 -14.
¶12 Here, the administrative judge found that the appellants were not at fault in
creating the overp ayment but that they were not entitled to waiver because they
did not show that recovery of the overpayment would be against equity and good
conscience. ID at 6-7. Specifically , she found that the appellant s knew or
suspected that they were receiving an overpayment and that they therefore were
expected to set aside the amount overpaid pending recoupment by OPM. ID at 6.
12 Substantial evidence is the degree of releva nt 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. § 120 1.4(p).
10
Moreover , she found that they failed to provide any evidence showing that
recovery of the overpayment would c ause them financial hardship. ID at 6 -7. On
review, the appellants argue that the administrative judge erred in finding that
they were not entitled to waiver of the overpayment because it “would be against
‘equity and good conscience’ to collect from ann uity accounts that had never
received an overpayment.” 0522 PFR File, Tab 1 at 6; 0523 PFR File, Tab 1 at 5.
¶13 As discussed above, the appellants’ contention that they “never received an
overpayment” is unpersuasive . Therefore, their argument on review p rovides no
basis to disturb the initial decision. In addition, we agree with the administrative
judge’s finding that the appellants knew or suspected that they were receiving an
overpayment . ID at 6. OPM refunded the overpayment to them in June 2016 , in
connection with their prior Board appeal . Id.; Murphy Consolidation v. Office of
Personnel Management , MSPB Docket No. DA-0841 -16-0353 -I-2, Appeal File,
Tab 6 , Initial Decision (0353 -I-2 ID) at 2. Accordingly, the set -aside rule
applies, and the appella nts are not entitled to waiver absent “exceptional
circumstances ,” see Boyd , 851 F.3d at 1313 , which they have not shown or
alleged. Even if the set-aside rule did not apply, we agree with the administrative
judge’s det ermination that the appellants failed to show that they are entitled to
waiver based on financial hardship because they have not submitted any
information regarding their finances . ID at 6 -7; see 5 C.F.R. § 845.304
(providing that financial hardship exists if an annuitant “needs substantially all of
his or her current income and liquid assets to meet current ordinary and necessary
living expenses and liabilities ”).
¶14 Annuitant s who are ineligible for a waiver may nonethe less be entitled to an
adjustment in the recovery schedule if they show that it would cause them
financial hardship to make payment at the rate scheduled. Maseuli v. Office of
Personnel Management , 111 M.S.P.R. 439 , ¶ 10 (2009); 5 C.F.R. § 845.301 .
Here, the administrative judge determined that the appellants fail ed to establish
by substantial evidence their entitlement to an adjustment of the repayment
11
schedule because they did not submit Financial Resources Questionnaires or
provide any other information about their finances. ID at 7. They have not
challenged this finding on review, 0522 PFR File, T ab 1; 0523 PFR File, Tab 1,
and we discern no basis to disturb it.
The appellants’ allegations regarding OPM’s collectin g the overpayment through
administrative offset provide no b asis to disturb the initial decision.
¶15 On review, the appellants argue that OPM violated their constitutional
rights to due process and freedom of speech and failed to follow the applicable
regulations when it collected the overpayment through administrativ e offset
procedures. 0522 PFR File, Tab 1 at 3 -6; 0523 PFR File, Tab 1 at 3 -6.
¶16 As noted above, OPM informed the appellants in its prior undated final
decisions that it had administratively offset their annuity payments from August
to November 2014 to re cover the overpayment. Murphy v. Office of Personnel
Management , MSPB Docket No. DA -0841 -16-0345-I-1, Initial Appeal File, Tab 1
at 6-9; Dahlstrom v. Office of Personnel Management , MSPB Docket No.
DA-0841 -16-0346 -I-1, Initial Appeal File, Tab 1 at 6-9. The appellants appealed
OPM’s decision s to the Board , and, after OPM refunded the amounts collected
through administrative offset to the appellants and rescinded the undated final
decision s, the administrative judge issued an initial decision dismissing the
appeal s for lack of jurisdiction. 0353 -I-2 ID. That initial decision became the
Board ’s final decision after neither party filed a petition for review. 5 C.F.R.
§ 1201.113 (a). Therefore, the appellants’ challenges to OPM’s 2014
administrative offset action are not presently before the Board and provide no
basis to disturb the initial decision.
¶17 The record also reflects that OPM collected $100 from each of the
appellants while the instant appeal s were pending in November 2016 but that it
subsequently refunded to them the amount collected and suspended its collection
efforts pending resolution of these appeals . CAF, Tab 11 at 4. In addition, OPM
submitted evidence on review showin g that it collected a total amount of
12
$1,343.33 from Mr. Murphy’s annuity between October 2016 and December 2017
and that it refunded the improperly collected amount on December 14, 2017.
0523 PFR File, Tab 2. The appellants have not alleged that OPM did not refund
the full amounts that were improperly collected. Accordingly, OPM’s improper
collections provide no basis to disturb the initial decision.
We find no merit to the appellants’ contention that OPM should recover the
overpayment from th eir bank.
¶18 As noted above, OPM indicated in its final decisions that it erroneously
deposited annuity payments into the appellants’ joint account that were intended
for another annuitant and that the appellants’ bank returned $2,800 of the
overpayment to OPM, thereby reducing the appellants’ outstanding overpayment
to $2,686.64. CAF, Tab 3 at 6, Tab 4 at 6. In addition, OPM explained that
Department of the Treasury regulations and the Green Book: A Guide to Federal
Government ACH Payments (Green Book )13 prohibit U.S . banks from depositing
Government funds into bank accounts whose registered owners are different from
the intended payee but that the appellants’ bank nonetheless allowed payments
“clearly directed to a person with a name different from [theirs] to be dep osited
into [their] account.” CAF, Tab 3 at 7, Tab 4 at 7. The appellants argued that
OPM should collect the overpayment from the bank, rather than from the m,
because its error allowed the incorrect payments to take place. CAF, Tab 18,
Hearing Compact Disc ( HCD ) (opening statements of Mr. Murphy). The
administrative judge did not address this argument in the initial decision, and the
appellants raise it again on review. 0522 PFR File, Tab 1 at 8; 0523 PFR File,
13 The Department of the Treasury’s Bureau of the Fiscal Service issues the
Green Book , which provides procedures and guidelines for financial institutions
that process Automated Clearing House (ACH) payments from the Federal
Government. 31 C.F.R. § 210.2 (k), (l), (p); Green Book at ii (Jan. 2021 ), available at
https://www.fiscal.treasury.gov/fsreports/ref/greenBook/greenbook_home.htm (last
visited Mar. 29, 2023 ). Financial institutions that receive ACH payments from the
Government are bound to comply with the instructions and procedures set forth in the
Green B ook. 31 C.F.R. § 210.3 (c).
13
Tab 1 at 8. For the reasons that follow , we find no merit to the appellants’
argument and, therefore, further find that the administrative judge’s failure to
address this argument below did not prejudice the appellants. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for revers ing an initial decisi on). We modify the initial decision
consistent with this section to address this argument.
¶19 Pursuant to the Green Book and the applicable regulations, if a financial
institution “becomes aware that an agency has originated an [Automated Clearing
House (ACH )] credit entry to an account that is not owned by the payee whose
name appears in the ACH payment information, [the financial institution] shall
promptly notify the agency.” 31 C.F.R. § 210.8(d); Green Book at 2-6, 4-3. The
Green Book notes that a financial institution may become aware of a misdirected
payment if, among other things, it “manually posts [its] ACH credits [and] notices
that a payment is bein g credited to the wrong account. ” Green Book at 2-6. The
Green Book clarifies, however, that “an institution is not required to match names
when posting a Federal government ACH entry.” Id.
¶20 There is no evidence here establishing that the appellants’ bank was aware
that the misdirected annuity payments were intended for another annuitant or that
its obligation to notify OPM of the misdirect ed payment had been triggered. Id.
Even if the bank noticed that the name of the intended payee did not match the
owners of the account, it does not appear that the Green Book requires OPM to
hold the bank liable for the misdirected funds that were received by and
recoverable from the appellants. Therefore, although a financial institution may
be held liable when the Government sustains a loss as a result of its failure to
properly handle ACH payments, 31 C.F.R. § 210.8 (b), there does not appear to be
any basis here for OPM to hold the bank liable for funds that OPM incorr ectly
routed to the appellants.
14
¶21 The appellants have not identified any other basis, and we are aware of
none, to hold the bank liable for the funds they received through OPM’s
misdirected payments. Accordingly, we find no merit to their contention that
OPM may , or is required to, collect the overpayment from their bank.14
The appellants’ allegation that the administrative judge denied them a fair hearing
provide s no basis to disturb the initial decision.
¶22 The appellants also argue on review that the administrative judge denied
them a fair hearing because she did not allow them to call OPM employees as
witnesses . 0522 PFR File, Tab 1 at 4; 0523 PFR File, Tab 1 at 4. The record
reflects that the administrative judge initially approved the appellan ts’ requests to
call two OPM employees as witnesses at the hearing. CAF, Tab 8 at 6. OPM
objected, arguing that the employees had no personal knowledge of the facts of
the case. CAF, Tab 12 at 4 -5. In an order rescheduling the hearing, the
administrative judge denied the appellants’ request to call the OPM employees as
witnesses. CAF, Tab 17. She advised the parties that, if they objected to the
order, they must submit a written objection or raise the objection orally at the
start of the h earing. Id. at 2.
¶23 At the beginning of the hearing, Mr. Murphy objected to the disallowance
of OPM’s employees as witnesses, arguing in particular that he wanted to
question the Acting Chief of Quality Control and Authorization Operations
Support (Acting Chief) . HCD (op ening statements by Mr. Murphy); CAF, Tab 4
at 8. Mr. Murphy argued that the Acting Chief had informed him by telephone
that he was going to “screw [him]” and that he sought to collect the overpayment
14 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for ex ample, 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
estat e. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016 ).
15
from the appellants, rather than the bank, because of retaliatory motives. HCD
(opening statements by Mr. Murphy) . On review, Mr. Murphy argues that the
administrative judge erred in disallowing the testimony of the Acting Chief
because , according to Mr. Murphy, he was “personally involved in this matter”
and because his testimony would have revealed his “illegal activities and abusive
actions.” 0523 PFR File, Tab 1 at 4.
¶24 An administrative judge has wide discretion to control the proceedings,
including the authority to exclude testimony s he believes would be irrelevant,
immaterial, or unduly repetitious. Guerrero v. Department of Veterans Affairs ,
105 M.S.P.R. 617 , ¶ 20 (2007) ; 5 C.F.R. § 1201.41 (b)(7) . To obtain reversal of
an initial decision on the ground that the administrative judge abused her
discretion in excluding evidence, the petitioning party must show on review that
relevant evidence, which could have affected the outcome, was disallowed.
Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48 , ¶ 12 (2004), aff’d
per curiam , 121 F . App’x 865 (Fed. Cir. 2005).
¶25 Here, as discussed above, the appellants may not assert an affirmative
defense of whis tleblower retaliation and, moreover, have not shown that OPM
exercised any discretion in seeking to c ollect the overpayment from them , rather
than from the bank. Therefore, the appellant s have not shown that the Acting
Chief ’s testimony would be relevant to the dispositive questions at issue in these
appeal s. Furthermore, t he appellants have not alleged, and we do not discern, that
the second OPM employee would have provided any relevant, nonrepetitious, and
material testimony. In light of the foregoing , we find that the administrative
judge did not abuse her discretion in excluding OPM’s employees as witnesses at
the hearing . See McDaniel v. Office of Personnel Management , 123 M.S.P.R. 55,
¶¶ 6, 9 (2015) (declining to grant review based on an administrative judge’s
denying an appellant’s request for an OPM witness because the testimony sought
did not concern the only r elevant question of whether another individual was
entitled to a lump -sum annuity payment); Brownscombe v. Office of Personnel
16
Management , 37 M.S.P.R. 382, 386 (1988) (finding that an administrative judge
did not err in denying the appellant’s request to call as witnesses the OPM
officials who decided his retirement case because the appellant did not establish
that their testimony would have added any new information to the information
already contained in the record), aff’d per curiam , 871 F. 2d 1097 (Fed. Cir. 1989)
(Table).
NOTICE OF APPEAL RIG HTS15
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit m ay result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is th e appropriate one to review your case, you
should contact that forum for more information.
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
18
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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
19
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.16 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
16 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MURPHY_CONSOLIDATION_2_DA_0841_16_0524_I_1_FINAL_ORDER_2016157.pdf | 2023-03-29 | null | DA-0841 | NP |
3,344 | https://www.mspb.gov/decisions/nonprecedential/MCGOVERN_ANN_M_PH_0752_16_0455_I_1_FINAL_ORDER_2016294.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANN M. MCGOVERN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -16-0455 -I-1
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Fred Stone , Esquire, South Deerfield, Massachusetts, for the
appellant.
Joshua R. Carver , Esquire, Augusta, Maine, 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 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 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 removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the 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 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 h as 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 agency removed the appellant from her Secretary position, effective
November 14, 2015 , for refusal to take a required drug test . Initial Appeal File
(IAF), Tab 8 at 11, 13 -22. The appellan t elected to challenge her removal
through the equal employment opportunity (EEO) process by initiating counseling
on December 28, 2015. Id. at 8. On March 29, 2016, the appellant was notified
of her right to file a formal complaint , and she was advised that the filing
deadline was April 20, 2016. IAF, Tab 5 at 12. However, she did not file her
formal complaint of discrimination until May 6, 2016, fifteen days after the filing
deadline. Id. The agency issued a final agency decision (FAD) on August 23,
2016, dismissing her complaint as untimely filed and notifying her that she had
3
the right to appeal the agency’s procedural decision to the Equal Employment
Opportunity Commission (EEOC), Office of Federal Operations (OFO), or to the
appropriate U.S. dist rict court. Id. Instead of filing as instructed, the appellant
filed an appeal with the Board on September 6, 2016, challenging the agency’s
decision to remove her from her Secretary position and asserting that the appeal
was a mixed -case appeal. IAF, T ab 1.
¶3 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial
Decision (ID) . She found that the appellant elected to challenge her removal by
pursui ng an EEO complaint, which was dismissed as untimely filed, and that she
therefore was precluded from pursuing a Board appeal challenging the same
adverse action. ID at 4. She also found that, to the extent the appellant argued
that the doctrine of equit able tolling should be applied to find that her Board
appeal was timely filed, the appeal was deemed timely filed. Id. The
administrative judge found further that, although the appellant asserted that the
Board should apply the doctrine of equitable toll ing to her formal complaint of
discrimination, the appellant provided no rule, regulation, law, or case in support
of her claim. Id. Concluding, the administrative judge found that the appellant’s
avenue of relief from the FAD’s dismissal based on untimeliness was to the
EEOC’s OFO or to the appropriate U.S. district court, not to the Board, and that
the Board defers to an employing agency’s timeliness decision. ID at 5.
¶4 The appellant has filed a petition for review and a supplement to her
petition . Petition for Review (PFR) File, Tabs 1, 3. The agency has filed a
response. PFR File, Tab 7.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 In a mixed -case appeal, an employee may elect either to file a timely
complaint of discrimination with her agency’s EEO off ice or timely file an appeal
with the Board, but not both. 29 C.F.R. § 1614.302 (b); see C rumpton v.
4
Department of the Treasury , 98 M.S.P.R. 115 , ¶ 10 (2004 ). Whichever is filed
first is considered to be an election of that forum. Crumpton , 98 M.S.P.R. 115 ,
¶ 10. When an employee elects to file a complaint with the agency’s EEO office,
that office may dismiss a complaint that fails to comply with the applicable
regulatory time limits. 29 C.F.R. § 1614.107 (a)(2). An employee dissatisfied
with such a dismissal then may appeal it to the EEOC or file a civil action in U.S.
district court, but not the Board. 29 C.F.R. § 1614.110 (b). Because the Board
defers to a FAD finding that a complaint was untimely filed when that decision
was not appealed to the EEOC, a dismissal of an EEO complaint as untimely
precl udes the subsequent pursuit of a Board appeal challenging the same adverse
action. McCoy v. U.S. Postal Service , 108 M.S.P.R. 160 , ¶ 11 (2008).
¶6 On review, the appellant assert s that the administrative judge erred in
dismissing her appeal as untimely filed and that the administrative judge instead
should have dismissed her appeal for lack of jurisdiction. PFR File, Tab 3 at 5-6.
However, the administrative judge explicitly found that, “[w]hile it initially
appeared that her Board appeal challenging her November 14, 2015 removal was
untimely, once she demonstrated that she was challenging the August 23, 2016
FAD, her appeal was deeme d timely.” ID at 2. Thus, her appeal was not
dismissed as untimely filed , as alleged by the appellant . Rather , the
administrative judge dismissed this appeal for lack of Board jurisdiction , which
we find proper under the circumstances . ID at 1, 5 ; see McCoy , 108 M.S.P.R.
160, ¶ 11.
¶7 Next, the appellant argues that she erroneously filed her appeal with the
Board —rather than with t he EEOC —and that the Board therefore should remand
her appeal for “review in light of 5 U.S.C. [§] 7702(f).” PFR File, Tab 3 at 4.
Section 7702(f) provides that , when “an employee is required to file any action,
appeal, or petition under this section and the employee timely files the action,
appeal, or petition with an agency other than the agency with which the action,
appeal, or petition is to be filed, the employee shall be treated as having timely
5
filed the action, appeal, or petition as of the date i t is filed with the proper
agency.” The appellant appears to argue that, pursuant to this section, the Board
should remand her appeal to the administrative judge for a determination that her
appeal be deemed timely filed with the proper agency —the EEOC. PFR File,
Tab 4 at 5-6. However, the appellant filed her appeal with the Board —not with
an agency other than the Board —and that appeal was deemed timely filed. Under
these circumstances, section 7702(f) is inapplicable to the Board’s processing of
her ap peal, and the Board is without authority to direct the EEOC’s processing of
her appeal.
¶8 Accordingly, we find the appellant has provided no basis upon which to
disturb the initial decision.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
7
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 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
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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:
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.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
Contact information for the courts of appeals can be 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 | MCGOVERN_ANN_M_PH_0752_16_0455_I_1_FINAL_ORDER_2016294.pdf | 2023-03-29 | null | PH-0752 | NP |
3,345 | https://www.mspb.gov/decisions/nonprecedential/DILONE_EDWIN_E_DC_3330_17_0702_I_1_FINAL_ORDER_2016317.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWIN E. DILONE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-3330 -17-0702 -I-1
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edwin E. Dilone , Eagle Point, Oregon , pro se.
Amanda E. Shaw , Esquire, Roanoke, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appel lant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) and dismissed his employment practices claim
for lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 As further detailed in the initial decision, the agency posted vacancy
announcement VHA -658-17-RG-1941474 -BU, a hybrid title 38 Social Worker
position, to be filled at either the GS -9 or GS -11 level. Initial Appeal File (IAF),
Tab 8 at 35 -40, Tab 15, Initial Decision (ID) at 2; see generally Graves v.
Department of Veterans Affairs , 114 M.S.P.R. 245 , ¶¶ 10 -12 (2010) (discussing
hybrid title 38 positions). Among other things, the announcement explained that
the GS -9 level was for social workers with less than 1 year of experience and
social workers who were not yet licensed or certified at the independent practice
level. IAF, Tab 8 at 37. The higher GS -11 level required a mi nimum of 1 year of
experience and “licensure or certification in a state at the independent practice
level.” Id.
3
¶3 After the appellant and numerous others applied, the agency sorted
applicants into three groups. The first contained applicants who met the
minimum requirements to be a GS -11 Social Worker. Id. at 25 -28. The second
contained applicants who met the minimum requirements to be a GS -9 Social
Worker and had veterans’ preference. Id. at 29 -31. The third contained
applicants who met the minimum r equirements to be a GS -9 Social Worker and
were also Federal employees. Id. at 32 -34. The appellant’s application was
included in the second group, for individuals qualified to be a GS -9 Social
Worker with veterans’ preference. Id. at 30. The selecting official chose a
candidate from the group of applicants who met the minimum requirements to be
a GS -11 Social Worker. Id. at 24 -25, 27.
¶4 The appellant filed a veterans’ preference complaint with the Department of
Labor (DOL) concerning his nonselection. IAF, Tab 4 at 31. Once DOL closed
the matter, this appeal followed. IAF, Tab 1. Based on the appellant’s
allegations, the administrative judge afforded him an opportunity to meet his
jurisdictional burden as both a VEOA claim, IAF, Tab 3, and an employm ent
practices claim, IAF, Tab 12. Without holding the requested hearing, the
administrative judge found that the Board had jurisdiction over the appellant’s
VEOA claim but denied his request for corrective action. ID at 4 -7. She
dismissed the employment practices claim for lack of jurisdiction. ID at 7 -9. 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.
¶5 The Board has jurisdiction over two types of VEOA claims: (1 ) the denial
of a right to compete; and (2) the violation of a statute or regulation relating to
veterans’ preference. See 5 U.S.C. § 3330a (a)(1)(A) (veterans’ preference
claims); 5 U.S.C. §§ 3330a (a)(1)(B), 3304(f)(1) (right -to-compete claims); see
generally Piirainen v. Department of the Army , 122 M.S.P.R. 194 , ¶ 8 (2015). To
establish Board jurisdiction over a right -to-compete V EOA claim, the appellant
must: (1) show that he exhausted his remedy with DOL; and (2) make
4
nonfrivolous allegations that (i) he is a veteran within the meaning of 5 U.S.C.
§ 3304 (f)(1); (ii) the actions at issue took place on or after the December 10, 2004
enactment date of the Veterans’ Benefits Improvement Act of 2004; and (ii i) the
agency denied him the opportunity to compete under merit promotion procedures
for a vacant position for which the agency accepted applications from individuals
outside its own workforce in violation of 5 U.S.C. § 3304 (f)(1). Becker v.
Department of Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010).
¶6 To establish Board jurisdiction over a veterans’ preference VEOA claim,
the appellant must: (1) show that he exhausted his remedy with DOL; and
(2) make nonfrivolous allegations that (i) he is a preference eligible within the
meaning of VEOA; (ii) the act ion at issue took place on or after the October 30,
1998 enactment date of VEOA; and (iii) the agency violated his rights under a
statute or regulation relating to veterans’ preference. Miller v. Federal Deposit
Insurance Corporation , 121 M.S.P.R. 88 , ¶ 6 (2014), aff’d , 818 F.3d 1361 (Fed.
Cir. 2016). T o prevail on the merits of either type of VEOA claim, the appellant
must prove the jurisdictional elements by preponderant evidence. See Graves v.
Department of Veterans Affairs , 114 M.S.P.R. 209 , ¶ 19 (2010); Isabella v.
Department of State , 106 M.S.P.R. 33 3, ¶¶ 21 -22 (2007), aff’d on recons .,
109 M.S.P.R. 453 (2008).
¶7 Although the appellant repeatedly has referenced VEOA’s right -to-compete
provisions, below and on review, it appears that the corresponding arguments are
based on a misunderstanding of the law. IAF, Tab 4 at 4 -5; PFR File, Tab 1
at 4-6. In a right -to-compete VEOA appeal under 5 U.S.C. § 3304 (f)(1), the
Board does not determine whether a preference eligible is qualified, or whether
he should have been selected, but rather, the Board only assesses whether the
preference e ligible was permitted to compete for the position on the same basis as
other candidates. Harellson v. U.S. Postal Service , 113 M.S.P.R. 534 , ¶ 11
(2010). The administrative judge found that there was undisputed evidence
showing that the appellant had the opportunity to compete for the Social Worker
5
position, ID at 6, and we agree. The agency accepted his application and properl y
included him on its list of applicants qualified for the position at the GS -9 level
with veterans’ preference. Compare IAF, Tab 4 at 14 (appellant’s application,
with responses concerning his qualifications), with IAF, Tab 8 at 29 -30
(appellant’s inclus ion on the list of applicants qualified at the GS -9 level with
veterans’ preference), 37 (vacancy announcement’s explanation of the differing
qualifications required for the GS -9 level and the GS -11 level). While the
appellant disputes the agency’s select ing someone qualified for the GS -11 level,
he has failed to prove or even nonfrivolously allege that he was denied the right
to compete.
¶8 The appellant’s veterans’ preference claim is also unavailing. As stated
above, the agency properly determined that th e appellant was qualified for the
GS-9 level and included him on the corresponding certificate of applicants with
veterans’ preference. IAF, Tab 8 at 8, 29 -30. However, the agency ultimately
selected an applicant from the certificate of candidates qualif ied for the GS -11
level , none of which were preference eligible. Id. at 8, 24 -28.
¶9 On review, the appellant suggests that the agency failed to select him
because he lacked a qualification that was not listed on the vacancy
announcement, PFR File, Tab 1 a t 5, but the announcement reflects otherwise.
The vacancy announcement clearly states that, to be qualified at the higher GS -11
level, an applicant must possess “a minimum of 1 year of post -MSW degree
experience in the field of health care social work (VA or non -VA experience) and
licensure or certification in a state at the independent practice level.” IAF, Tab 8
at 37. The appellant acknowledged that he lacked those qualifications on his
application. IAF, Tab 4 at 14.
¶10 The appellant also suggests that the agency violated his veterans’ preference
rights by selecting a nonveteran qualified at the GS -11 level over him, a
preference -eligible veteran qualified at the GS -9 level. PFR File, Tab 1 at 5 -8
(citing 5 C.F.R. §§ 302.104 , 302.304, 302.401). But again, the appellant appears
6
to misunderstand the applicable provisions of law and regulation. See generally
Abell v. Department of the Navy , 343 F.3d 1378 , 1384 (Fed. Cir. 2003)
(recognizing that an agency “is not required to hire a preference -eligible veteran
if . . . it does not believe that the candidate is qualified or possesses the necessary
experience”). The Board considered a similar scenario in Dale v. Department of
Veterans Affairs , 102 M.S.P.R. 646 (2006). In Dale , an agency adve rtised a
position at both the GS -4 and GS -5 level s. Id., ¶ 11. The appellant in Dale was
qualified at the GS -4 level, but not the GS -5 level. Id. Therefore, his name was
properly ranked and forwarded with other qualified GS -4 applicants. Id.
However, the selecting official hired an applicant from the list of applicants
qualified at the GS -5 level, without even looking at the list of GS -4 applicants,
based on her feelings about the experience needed to fill the role. Id., ¶ 13. The
Board found that t his did not violate any veterans’ preference statute or
regulation. Id. We reach the same conclusion here. While the appellant would
have us find that the agency was required to select a preference -eligible applicant
qualified as a GS -9 over a nonveteran applicant qualified as a GS -11, he has
failed to identify any law, rul e, or regulation requiring the same. Therefore, we
agree with the administrative judge’s decision, denying his request for corrective
action under VEOA. ID at 6 -7.
¶11 In his petition for review, the appellant does not clearly reassert his
employment practic es claim. Nevertheless, we have reviewed the matter and
agree with the administrative judge’s conclusion that the appellant cannot
establish jurisdiction over his claim. ID at 7 -9. The position at issue is in the
excepted service, not the competitive se rvice. Compare IAF, Tab 8 at 35
(recognizing that the Social Worker position the appellant applied for was in the
excepted service), with 5 C.F.R. §§ 300.101 -300.104 (providing Board app eal
rights concerning employment practices within the competitive service);
McKnight v. Department of Defense , 103 M.S.P.R. 255 , ¶¶ 9-10 (2006)
7
(recognizing that employment practice appeals are limited to competitive -service
positions) , aff’d per curiam , 227 F. App’x 913 (Fed. Cir. 2007) .
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U .S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requ irements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
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.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
9
discrimination based on race, colo r, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office 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
with the EEOC no later 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
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 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
review within 60 days of the date of issuance of 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
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. P ub. L. No. 115 -195,
132 Stat. 1510.
11
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DILONE_EDWIN_E_DC_3330_17_0702_I_1_FINAL_ORDER_2016317.pdf | 2023-03-29 | null | DC-3330 | NP |
3,346 | https://www.mspb.gov/decisions/nonprecedential/SANDFORD_THOMAS_F_DA_0752_17_0126_I_1_FINAL_ORDER_2016319.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS F. SANDFORD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -17-0126 -I-1
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Yvette K. Bradley , 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. 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 regul ation 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 orde rs,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Boar d
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and t he 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 12 01.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On petition for rev iew, the appellant argues that the penalty of removal
exceeded the bounds of reasonableness. Petition for Review File, Tab 6. Among
other things, he asks the Board to consider his military service and the stress
brought about by his position in managemen t. Id. at 7-8. However, even after
considering these factors, in addition to those addressed in the initial decision , we
find that the penalty of removal was reasonable. Initial Appeal File, Tab 16,
Initial Decision at 17 -19. Accordingly, we affirm his removal.
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 a nd the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advi ce on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you shou ld
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully e ach of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informati on.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petit ion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websit e, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representatio n for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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. 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 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 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
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 | SANDFORD_THOMAS_F_DA_0752_17_0126_I_1_FINAL_ORDER_2016319.pdf | 2023-03-29 | null | DA-0752 | NP |
3,347 | https://www.mspb.gov/decisions/nonprecedential/RODRIGUEZ_YVETTE_V_DC_0752_17_0368_I_1_FINAL_ORDER_2016329.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
YVETTE V. RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-0752 -17-0368 -I-1
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Katie Pull , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for failure to maintain a condition of employment.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 initial decision is based o n an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required pro cedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established an y 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 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.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
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 in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | RODRIGUEZ_YVETTE_V_DC_0752_17_0368_I_1_FINAL_ORDER_2016329.pdf | 2023-03-29 | null | DC-0752 | NP |
3,348 | https://www.mspb.gov/decisions/nonprecedential/DILONE_EDWIN_E_DA_300A_17_0387_I_1_FINAL_ORDER_2016371.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWIN E. DILONE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-300A -17-0387 -I-1
DATE: March 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edwin E. Dilone , Eagle Point, Oregon , pro se.
Patrick A . Keen , Shreveport, Louisiana , for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 his employment practices appeal for lack of jurisdiction . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision cont ains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the pet itioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filin gs 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 decisi on. 5 C.F.R.
§ 1201.113 (b).
¶2 As further detailed in the initial decision, the agency posted vacancy
announcement VHA -671-17-GC-1940564 -BU, a hybrid title 38 Social Worker
position. Dilone v. Department of Veterans Affairs , MSPB Docket No. DA-300A -
17-0387 -I-1, Initial Appeal File (0387 IAF), Tab 5 at 12 -18, Tab 11, Initial
Decision (0387 ID) at 2, 4. Among other things, the announcement noted that
persons hired to the position “must b e licensed or certified by a state to
independently practice social work at the master’s degree level.” 0387 IAF,
Tab 5 at 13. The appellant applied for the vacancy but acknowledged that he
lacked that qualification. Id. at 30. Therefore, the agency de emed him ineligible.
Id. at 31-32.
¶3 The appellant filed a pleading with the Board, challenging his nonselection.
0387 IAF, Tab 1. The regional office docketed the matter as two separate
3
appeals. The first, which is currently before us, was an employment practices
appeal. 0387 IAF, Tab 2 at 1 -2. The second, which is not before us at this time ,
was a Veterans Employment Opportunities Act of 1998 (VEOA) appeal. 0387 ID
at 2 n.2; Dilone v. Department of Veterans Affairs , MSPB Docket No. DA -3330-
17-0380 -I-1, Initia l Appeal File (0380 IAF), Tab 3.
¶4 After affording the appellant an opportunity to establish jurisdiction over
his nonselection in the instant employment practice appeal, the admi nistrative
judge issued an initial decision that dismiss ed the appeal for lack of jurisdiction.
0387 ID at 1. The appellant has filed a petition for review. Dilone v. Department
of Veterans Affairs , MSPB Docket No. DA-300A -17-0387 -I-1, Petition for
Review (0387 PFR) File, Tab 1. The agency has filed a respo nse, and the
appellant has replied. 0387 PFR File, Tabs 3 -4.
¶5 As to the appellant’s employment practice claim at issue in the instant
appeal, part 300, governing employment practices, only applies to positions in the
competitive service. 5 C.F.R. § 300.101 ; see McKnight v. Department of Defense ,
103 M.S.P.R. 255 , ¶¶ 9-10 (2006), aff’d per curiam , 227 F. App’x 913 (Fed. Cir.
2007). Yet the undisputed evidence shows that the Social Worker position the
appellant applied for was in the excepted service. 0387 IAF, Tab 5 at 12;
0387 PFR File, Tab 1 at 6; see Graves v. D epartment of Veterans Affairs ,
114 M.S.P.R. 209 , ¶ 8 (2010) (recognizing that the positions identified in
38 U.S.C. § 7401 are in the excepted service); see also 38 U.S.C. § 7401 (3)
(listing certain positions relating to the health c are of ve terans, including the
Social W orker position). Accordingly, we agree with the administrative judge’s
determination that the appellant cannot establish jurisdiction over his
nonselection as an employment practice claim. 0387 ID at 4-6.
¶6 The appellant’s pe tition contains no substantive challenge to the
administrative judge’s analysis regarding jurisdiction in the context of his
4
employment practice claim. All of his arguments pertain to jurisdiction in the
context of a VEOA claim.3 0387 PFR File, Tab 1 at 4-12. However, those
arguments are unavailing in this appeal.4 See Meeker v. Merit Systems Protection
Board , 319 F.3d 1368 , 1374 (Fed. Cir. 2003) (recognizing that, “[i]In c hallenges
to employment practices, the relevant Office of Personnel Management
regulation, 5 C.F.R. § 300.104 (a), does not give the Board jurisdiction over any
and all legal challenges to employment practices; it grants jurisdiction to the
Board only with respect to challenges based on the three grounds set forth in
5 C.F.R. § 300.103 ,” which do not include violations of veterans’ preference)).
Therefore, we affirm the initial decision, dismissing this employment practices
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
3 The petition does contain the phrase, “employment practice,” but on ly once and only
in the context of alleging that the agency violated his veterans’ preference rights.
0387 PFR File, Tab 1 at 7. To the extent that the appellant’s reply does include an
employment practice argument, 0387 PFR File, Tab 4 at 5 -6, he waived the matter by
failing to raise it in his petition, see 5 C.F.R. § 1201.114 (a)(4) (recognizing that a reply
“is limited to the factual and legal issues raised by another party in the response to the
petition . . . [and] may not raise new allegations of error ”).
4 Because the appellant already had a separate VEOA appeal concerning the same
nonselection, we will not forward the VEOA claims presented on review in this
employment practice appeal for docketing as a new appeal. 0380 IAF , Tabs 1, 3.
Because the appella nt’s petition for review and reply in the instant employment practice
appeal predate the initial decision in his VEOA appeal, it would also be inappropriate to
construe them as a petition for review in that VEOA appeal. Compare 0387 PFR File,
Tabs 1, 4 (t he appellant’s petition for review and reply brief in this employment
practices appeal, both dated September 2017), with 0380 IAF, Tab 11 (the initial
decision in the appellant’s VEOA appeal, dated October 2017).
5 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.
5
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the follow ing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding wh ich cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicab le time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particula r forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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
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 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.6 The court of appeals must receive your pe tition for
6 The original statutory provision that provided f or 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 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.
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.
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 | DILONE_EDWIN_E_DA_300A_17_0387_I_1_FINAL_ORDER_2016371.pdf | 2023-03-29 | null | DA-300A | NP |
3,349 | https://www.mspb.gov/decisions/nonprecedential/DAY_THOMAS_F_DC_1221_12_0528_W_2_FINAL_ORDER_2015651.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS F. DAY,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER S
DC-1221 -12-0528 -W-2
DC-1221 -15-0211 -W-1
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Day , Sterling, Virginia, pro se.
Lorna J. Jerome and Edith Moore McGee , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request s for corrective action in these joined individual right of action
(IRA) appeals . For the reasons set forth below, the appellant’s petition for review
is DISMISSED as untimely filed by 27 days without good cause shown for the
delay . 5 C.F.R. § 1201.114 (e), (g).
¶2 The appellant, a Contract Specialist, filed two IRA appeals with the Board,
alleging that the agency engaged in a number of personnel actions in retaliation
for his whistleblower activity. Day v. Department of Homeland Security , MSPB
Docket No. DC-1221 -15-0211 -W-1, Initial Appeal File (0211 IAF), Tab 1 ; Day v.
Department of Homeland Security , MSPB Docket No. DC -1221 -12-0528 -W-1,
Initial Appeal File (0528 IAF), Tab 1 . Prior to issuing an initial decision, the
administrative judge joined the appeals for adju dication. Day v. Department of
Homeland Security , MSPB Docket No. DC -1221 -12-0528 -W-2, Appeal File
(0528 -W-2 AF) , Tab 401 at 2. He issued an initial decision denying corrective
action on September 13, 2016. 0528 -W-2 AF, Tab 414, Initial Decision (ID) . In
his decision, the administrative judge informed the parties that the decision would
become final on October 18, 2016 , unless a petition for review was filed by that
date. ID at 42. The appellant did not file a petition for review by that date and
instead submitted a pleading postmarked November 14, 2016. Id.; Day v.
Department of Homeland Security , MSPB Docket No. DC -1221 -12-0528 -W-2,
Petition for Review (PFR) File, Tab 1.
¶3 The Office of the Clerk of the Board informed the appellant that it appeared
that his petition was untimely filed and afforded him the opportunity to submit a
motion to either accept the filing as timely and/or waive the time limit for good
cause. PFR File, Tab 2 at 1 -2. The appellant responded by submitting an
affid avit in which he states that he did not receive the initial decision until he
accessed the e -Appeal Online repository on November 7, 2016 , and that he
3
assumed that he would have received an email stating that the initial decision had
been issued. PFR File , Tab 3 at 5. He also asserts that he attempted to contact
the administrative judge on the date that he discovered that the initial decision
had been issued and left a voicemail for him. Id. at 6. The appellant challenges
the validity of the certificate of service from the initial decision in MSPB Docket
No. DC -1221 -12-0528 -W-2 because it did not list his email address. Id. at 6-7.
Further, he appears to argue that there was no certificate of service included in
the case file for MSPB Docke t No. DC -1221 -15-0211 -W-1. Id. at 7. He
characterizes the aforementioned issues as significant errors in the e -Appeal
Online system that support a finding of good cause for his filing delay. Id. The
appellant also has filed a pleading that he wishe s the Board to consider as his
substantive petition for review. PFR File, Tab 4.
¶4 A petition for review must be filed within 35 days after the issuance of the
initial decision or, if the petitioner shows that the initial decision was received
more than 5 days after the date of issuance, within 30 days after the date the
petitione r received the initial decision . 5 C.F.R. § 1201.114 (e). The Board will
waive the time limit only upon a showing of goo d cause for the delay. 5 C.F.R.
§ 1201.114 (f). The appellant bears the burden of proof regarding timeliness .
Smith v. Department of the Army , 105 M.S.P.R. 433 , ¶ 4 (2007).
¶5 Here, the appel lant was a registered e -filer. 0528 IAF, Tab 10; see
0528 -W-2 AF, Tab 412 . Registration as an e -filer constitutes consent to accept
electronic service of pleadings filed by other registered e -filers and documents
issued by the Board. 5 C.F.R. § 1201.14 (e). Consequently , the appellant was
deemed to have received the initial decision when it was issued on September 13,
2016. Martinez v. Broadcasting Board of Governors , 115 M.S.P.R. 46, ¶ 6
(2010); 5 C.F.R. § 1201.14 (m)(2). Accordi ngly, his petition for review was due
35 days after the i ssuance of the initial decision , or by October 18, 2016 .
4
¶6 The appellant mailed his pleading . The date of filing by mail is the
postmark date. 5 C.F.R. § 1201.4 (l). His pleading was not postmarked until
November 14, 2016. PFR File , Tab 1. Thus , his petition for review was 27 days
late.
¶7 The Board may grant a waiver of a time limit for filing a petition for
review, in the interest of justice, after considering all of the facts and
circumstances of a particular case. Terrell v. U.S. Postal Service , 114 M.S.P.R.
38, ¶ 6 (2010). To establish good cause for the untimely filing, a party must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse an d
his showing of due diligence, whether he is proceeding pro se, and whether he has
presented evidence of the existence of circumstances beyond his control that
affected his ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly shows a causal relationship to his inability to timely file
his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995),
aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8 We find that the appellant’s primary excuse that he did not receive the
initial decision is not reasonable as it is contradicted by the Board’s records
indicating that the initial decisi on was emailed to his email address of record.
See Terrell , 114 M.S.P.R. 38, ¶ 8. Additionally, we find that he did not act
diligently because, although he admits that he discovered on November 7, 2016 ,
that the administrative judge had issued the initial decision, he did not file a
petition for review or request an extension of time to do so until November 14,
5
2016.3 PFR File, Tab 3 at 5. We also are not persuaded by the appellant’s
general dissatisfaction with the Board’s e-Appeal Online system.4
¶9 We recognize that the appellant is pro se. However , we also find that the
27-day delay in this case is not minimal. See Gerdts v. Department of Labor ,
111 M.S.P.R. 412, ¶ 17 (2009) (stating that a 21 -day filing delay of a petition for
review is no t minimal). Accordingly, we dismiss the petition for review as
untimely filed. This is the final decision of the Merit Systems Protection Board
regarding the timeliness of the petition for review. The initial decision remains
the final decision of the B oard regarding the appellant’s request s for corrective
action .
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 The appellant has submitted what appears to be a 48 -second outgoing call record on
November 7, 2016 , from his cellular phone to the administrative judge. PFR File, Tab 3
at 10. We find that, regardle ss of the appellant’s attempt to contact the administrative
judge, he was still required to exercise due diligence in filing his petition for review.
4 The appellan t’s assertions that the Board did not include proper certificates of service
in his appeal s are not supported by the record . 0211 IAF, Tab 449; 0528 -W-2 AF ,
Tab 415.
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC 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 b y the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office o f Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision befo re you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 a ny other circuit court of appeals of competent jurisdiction.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for a n appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board n either 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.
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 | DAY_THOMAS_F_DC_1221_12_0528_W_2_FINAL_ORDER_2015651.pdf | 2023-03-28 | null | S | NP |
3,350 | https://www.mspb.gov/decisions/nonprecedential/CHOI_KYUNG_M_SF_1221_17_0545_W_1_FINAL_ORDER_2015673.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KYUNG M. CHOI,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-1221 -17-0545 -W-1
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kyung M. Choi , Fullerton, California, pro se.
Brandon M. Barro s, China Lake, 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 her individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant disputes the administrative judge’s jurisdictional
findings and attempts to argue matters precluded by the administrative judge’s
disposition . 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 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 aff ected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain 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 available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situa tion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your clai ms and carefully follow all
2 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.
3 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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
belo w to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general r ule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney 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.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision 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 Whistlebl ower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 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 | CHOI_KYUNG_M_SF_1221_17_0545_W_1_FINAL_ORDER_2015673.pdf | 2023-03-28 | null | SF-1221 | NP |
3,351 | https://www.mspb.gov/decisions/nonprecedential/SLATER_COLISTER_SF_3443_17_0029_I_1_FINAL_ORDER_2015730.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COLISTER SLATER,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-3443 -17-0029 -I-1
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Colister Slater , Fontana, California, pro se.
Nicholas R. Hankey , Washington, D.C. , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction , as untimely filed, and as barred by
the doctrine of collateral estoppel . On review, the appellant argues that the
administrative judge erred by finding that collateral estoppel precluded his claim
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 law enforcement officer retirement coverage, erred by dismissing his
individual right of action claims, denied him due process in the adjudication of
his appeal, and was biased against him. Generall y, we grant petitions such as this
one only in the fo llowing 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 administr ative 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 initia l
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
2 The appellant also filed a motion for leave to file additional pleadings. P etition for
Review File, Tab 5. In this motion, he appears to be seeking leave to submit additional
evidence and argumen ts. Id. Even if the additional evidence that the appellant seeks to
admit is new, he has failed to explain how the evidence is material and would warrant
an outcome different from that of the initial decision. Russo v. Veterans
Administration , 3 M.S.P.R. 345, 349 (1980); Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980). Furthermore, the arguments the appellant seeks to submit
on review are the same ones he previously raised in the record below and in his petition
for review. As a result, they have already been considered by the administrative judge
and the Board. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980).
Accordingly, the appellant’s motion for leave to submit additional evidence and
arguments is denied.
3
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 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:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of rev iew 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,” 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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 y our representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, rel igion, 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 .
Conta ct information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites. aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SLATER_COLISTER_SF_3443_17_0029_I_1_FINAL_ORDER_2015730.pdf | 2023-03-28 | null | SF-3443 | NP |
3,352 | https://www.mspb.gov/decisions/nonprecedential/DOE_JOHN_DA_0752_16_0100_I_2_FINAL_ORDER_2015803.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN DOE,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -16-0100 -I-2
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Doe , Enid, Oklahoma, pro se.
Jeremiah Crowley , Esquire, Joint Base Andrews, 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
affirmed his removal based on one charge of conduct unbecoming. On petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 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
for review, the appellant argues that the administrative judge erred in finding the
following: that he was less credible than the individual who accused him of the
conduct for which he was removed; that the agency proved the charge, nexus, and
the reasonableness of the penalty; and that he waived or failed to establish his due
process affirmative defense. He furthe r argues that the administrative judge
failed to consider his argument that his removal resulted from unlawful command
influence. 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 1 201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appe al, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
address the probative value of certain hearsay evid ence, we AFFIRM the initial
decision.
¶2 We MODIFY the initial decision to find that the police department’s
December 8 , 2014 supplemental narrative report is hearsay evidence that does not
have a high probative value and that the statements attributed to t he appellant in
the report do not lessen his relative credibility . See Borninkhof v. Department of
Justice , 5 M.S.P.R. 77 , 87 (1981) (setting for th the factors that may affect the
probative value of hearsay evidence). Notwithstanding this slight modification to
the administrative judge’s credibility analysis, the appellant has not provided
sufficiently sound reasons to overturn the ad ministrative judge’s other credibility
3
determinations , including his demeanor -based findings, or his ultimate
determination that the appellant was less credible than the individual who stated
that he engaged in the conduct for which he was removed . See Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (providing that t he
Board must defer to an administrative judge’s find ings regarding credibility when
those findings are based on the demeanor of the testifying witnesses and may
overturn demeanor -based credibility findings only if the Board has sufficiently
sound reasons for doing so). Therefore, we do not disturb the administrative
judge’s determination that the agency proved the charge of conduct unbecoming .3
¶3 Although the appellant argues on review that the administrative judge failed
to consider his unlawful command influence defense, it does not appear that he
raised it below. Therefore, we need not consi der it for the first time on review.
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). Even if he
did raise it below, he waived or abandoned it by, among other things, failing to
object to the administrative judge’s order and summary of the issues, which did
not identify this defense as one that would be adjudi cated . See Thurman v. U.S.
Postal Service , 2022 MSPB 21, ¶¶ 18-25 (setting forth the factors to be
considered in determining whether an appellant has waived or abandoned an
affirmative defense). In any ev ent, the appellant’s unlawful command influence
defense, which is derived from Article 37 of the Uniform Code of Military
Justice, is misplaced in this Board proceeding. See 10 U.S.C. § 837; United
States v. Biagase , 50 M.J. 143, 149 -51 (C.A.A.F. 1999). The administrative
3 The administrative judge characterized the agency ’s charge as involving “a he said,
she said, scenario,” citing Faucher v. Department of the Air Force , 96 M.S.P.R. 20 3,
¶ 7 (2004) and Vicente v. Department of the Army , 87 M.S.P.R. 80 , ¶ 7 (2000). ID
at 5-6. We agree that the resolution of the c ase depends on an assessment of the
relative credibility of two individuals. However, we note that this requires no special
credibility assessment and such cases are no different than any other case involving
conflicting testimony. See, e.g., Hillen v. Department of the Army , 35 M.S.P.R. 453 ,
458 (1987). We see no reason to label such matters as “he said, she said,” as that may
sugges t that a different standard applies in the assessment of credibility.
4
judge considered the appellant’s argument that the deciding official was biased
and acted in an improper manner in carrying out his duties as a deciding official
but found n o merit to these conditions. We discern no basis to disturb this
finding.
¶4 We have considered the appellant’s other arguments on review but conclude
that they provide no basis to disturb the initial decision . 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 the issue of
credibility ); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appro priate
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 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.
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 ca nnot advise which option is most appropriate in any matter.
5
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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:
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 n o challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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 | DOE_JOHN_DA_0752_16_0100_I_2_FINAL_ORDER_2015803.pdf | 2023-03-28 | null | DA-0752 | NP |
3,353 | https://www.mspb.gov/decisions/nonprecedential/GRANT_BYRON_K_DA_0752_16_0480_I_1_FINAL_ORDER_2015838.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BYRON K. GRANT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -16-0480 -I-1
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven E. Brown , Esquire, Westlak e Village, California, for the appellant.
Brandi M. Powell , New Orleans, Louisiana, 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
susta ined 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order h as 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 interpret ation 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 a buse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federa l Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1 201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was formerly employed by the agency as a Supply Technician
until he was removed, effective July 8, 2016 , based on one charge of conduct
unbecoming. Initial Appeal File (IAF), Tab 6 at 11 -15. The charge was based on
one spe cification in which the agency alleged that the appellant engaged in a loud
verbal exchange with another employee that escalated to a physical altercation,
necessitating agency police to respond to the scene. Id. at 13.
¶3 The appellant filed a n appeal disputing the charges. IAF, Tab 1. After
holding the requested hearing, the administrative judge issued an initial decision ,
sustaining the appellant’s removal. IAF, Tab 15, Initial Decision (ID). The
administrative judge found that the agency proved its c harge , there was a nexus
between the sustained charge and the efficiency of the service, and the penalty of
removal was reasonable. ID at 2 -9.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not res ponded to the appellant’s petition.
3
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the agency proved its charge.
¶5 The administrative judge found that the agency proved the essence of its
charge, which was that the appellant e ngaged in a verbal and physical altercati on
in the workplace. ID at 3-5. On review, the appellant contends that the
administrative judge erred in relying on Hicks v. Department of the Treasury ,
62 M.S.P.R. 71 (1994), aff’d , 48 F.3d 1235 (Fed. Cir. 1995) (Table) , for the
proposition that an agency is only requir ed to prove the essence of its charge and
need not prove each factual specification supporting the charge. PFR File, Tab 1
at 4. He further contends that the administrative judge erred in finding that the
agency proved its charge because it failed to demonstrate that he engaged in a
loud verbal exchange or that he chased the other emplo yee back into the
warehouse with a brick. Id. The administrative judge considered the appellant’s
testimony that he did not pick up a brick during the altercation, that his voice was
not loud before exiting the warehouse, and that he did not place his ha nds on the
other employee’s chest; rather, the employee’s chest met his hands because the
employee was standing so close to him . ID at 5. However, the administrative
judge found that even if she credited that testimony, the agency still proved the
essenc e of its charge. ID at 5. We discern no error in her analysis.
¶6 The appellant also contends that the administrative judge improperly found
that he pursued the other employee with aggression, despite his testimony to the
contrary. PFR File, Tab 1 at 4 . However, t he administrative judge considered the
appellant’s testimony that he did not run after the other employee but found that
it was not credible because it conflicted with the appellant’s statement prepared a
few days after the incident, the police o fficer’ s summary of the appellant’s
statement regarding the incident, a witness’s signed statement, and another
witness’s testimony at the hearing. ID at 4 -5. Thus, we find that the appellant’s
argument constitutes mere disagreement with the administrati ve judge’s findings
and does not provide a basis for reversal. See, e.g. , Crosby v. U.S. Postal Service ,
4
74 M.S.P.R. 98 , 105 -06 ( 1997) (finding no reason to d isturb the administrative
judge’ s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
The administrative judge properly found that the penalty of removal was
reasonable.
¶7 On review, the appellant contends t hat the administrative judge erred in not
mitigating the penalty. PFR File, Tab 1 at 4. In determining an appropriate
penalty, an agency must review relevant mitigating factors, also known as the
Douglas factors pursuant to Douglas v. Veterans Administra tion, 5 M.S.P.R. 280 ,
305-06 (1981). The Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. See Davis v. U.S. Postal Service , 120 M.S.P.R. 457 , ¶ 6 (2013).
Thus, the Boar d 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.
¶8 The administrative judge deferred to the agency’s decision to remove the
appellant after finding that the deciding official considered the relevant Douglas
factors, including the nature and seriousness of the offense, the appellant’s length
of service, and his prior 7 -day suspension for conduct unbecoming based on a
verbal altercation with another employee in the workplace . ID at 7-8. The
administrative judge also found that t he deciding official considered the
appellant’s self -defense claim but d etermined that the appellant was an active
participant in the altercation bec ause he chose to pursue the conflict, rather than
exercise his opportunity to retreat.3 ID at 7 -8. We agree with the administrative
3 The administrative judge similarly rejected the appellant’s self -defense claim and
found that the appellant was not without fault in the encounter in that he could have
retrea ted from the situation but instead chose to chase the employee back inside the
warehouse. ID at 5-6. Although the appellant argues on review that this was an error
because the record establishes that the other empl oyee was the initial aggressor, PFR
5
judge that the deciding official appropriately considered all of the relevant
Douglas factors , and thus his penalty determ ination is entitled to deference. We
further agree with the administrative judge that the penalty of removal was within
the bounds of reasonableness.
¶9 Based on the foregoing, we affirm the initial decision, sustaining the
appellant’s removal.
NOTICE OF APP EAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is m ost
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review t he law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main p ossible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
File, Tab 1 at 4, such an assertion fails to show any error in the administrative judge’s
finding that the appellant subsequently failed to retreat from the situation.
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 revi ew in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date o f issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at th e
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.g ov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action 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, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of pr epayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other i ssues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receive s
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request fo r review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial rev iew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegati ons of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower clai ms by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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.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.g ov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GRANT_BYRON_K_DA_0752_16_0480_I_1_FINAL_ORDER_2015838.pdf | 2023-03-28 | null | DA-0752 | NP |
3,354 | https://www.mspb.gov/decisions/nonprecedential/GARNER_JANNIECE_AT_0752_18_0357_I_1_FINAL_ORDER_2015840.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANNIECE GARNER,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
AT-0752 -18-0357 -I-1
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kalven L. Trice , Little Rock, Arkansas, for the appellant.
Scott Wallace Burton , Esquire, Suitland, 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 her removal . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
appellant ’s petition for review , REVERSE the initial decision, and DO NOT
SUSTAIN the appellant ’s removal .
BACKGROUND
¶2 The agenc y removed the appellant from her GS-4 Field Representative
position —the duties of which included conducting census activities with the U.S.
Census Bureau —based on a charge of Failure to Properly Secure Government
Issued P rope rty. Init ial Appeal File (IAF), Tab 4 at 22, 23 -26, 33 -36.
Specifically, the agency charged that, between September 2 and September 6,
2017, th e appellant lost from her home her government -issued laptop computer,
id. at 33, which she used to conduct and submit surveys for the agency . In
support of the removal penalty, the agency relied on the appellant ’s prior
discipline consisting of an official reprimand for failing to secure another
government -issued laptop computer .3 Id. at 34.
¶3 The appellant appea led the agency ’s action. IAF, Tab 1. Although initially
she requested a hearing, id. at 2, during the proceedings below she withdrew her
request, IAF, Tab 26. Based on the written record, the administrative judge found
that the agency proved the charge and that removal promoted the efficiency of the
service and was a reasonable penalty. IAF, Tab 33, Initial Decision (ID) at 3-8.
She also found that the appellant failed to pr ove her affirmative defenses of a
violation of due process, harmful procedural error , and discrimination based on
race and sex. ID at 8-16.
¶4 In her petition for review, the appellant disagrees with the administrative
judge ’s findings. She contends that the agency failed to prove the charge,
Petitio n for Review (PFR) File, Tab 1 at 7-8, and that removal was not a
3 On July 13, 2017, the appellant ’s government -issued laptop was stolen from her car.
IAF, Tab 4 at 45. The appellant had left the laptop in the front passenger foot well of
her vehicle where it was visible . Id. Leaving a laptop in such a location is contrary to
an agency regulation pr oviding that , when not in use, the laptop should be place d out of
sight in the trunk of the car. Id.
3
reasonable penalty, id. at 8-10. She also contends that she proved her affirmative
defenses. Id. at 17-22. The agency has responded in opposition to the petition.
PFR File, Tab 6.
ANALY SIS
The agency failed to prove its charge.
¶5 In an appeal in which a Federal agency takes an adverse action against a
tenured employee, the Board will sustain the action if the charge s are supported
by a preponderance of the evidence. 5 U.S.C. § 7701 (c)(1)(B). A preponderance
of the evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). Here,
as noted, the agency charged the appellant with Failure to Properly Secure
Government Issued Property. IAF, Tab 4 at 33. In support of the char ge, the
agency relied on the requirement of its Administrative Handbook that employees
must “[s]tore laptops, questionnaires and other materials in [their] home or hotel
room, in a secure place that is not visible.” Id. at 33, 68.
¶6 Here, the appellant has consistently stated that she complied with the
requirements of the Administra tive Handbook. In the September 6, 2017 email
reporting the loss of the computer to her supervisor, she stated that she had “last
had [the laptop] in [her] house. ”4 Id. at 39. In her response to the notice of
proposed removal, the appellant stated that she could not “explain [her] computer
being stolen ” and that she “followed the proper procedure in reporting the
incidents and filed necessary police reports. ” Id. at 29. In the September 13,
2017 Incident Report filed with the Memphis Police, the appellant reported the
4 In that email, the appellant also stated that she had reported the loss to the ap propriate
agency office and gave her supervisor the assigned case num ber. IAF, Tab 4 at 39.
Such reporting complies with equipment loss reporting guidance provided in the
Administrative Handbook. Id. at 66.
4
laptop stolen from her residence. IAF, Tab 19 at 92-94. During her deposition
under oath, the appellant maintained that her laptop was stolen from her home .
IAF, Tab 20 at 177. She stated that she stored the laptop in her bedroom closet.
Id. at 178. She responded to agency counsel ’s questions regarding whether she
securely stored the laptop, stating that she locked her doors when she was away
from home and that she was away on September 2, 2017 . Id. at 178-79. The
appellant acknowledged that her brother and parents had keys to her house but
stated that they told her that they had not accesse d the house between
September 2 and 6 , 2017. Id. at 179.
¶7 The a ppellant also stated that she filed a stolen propert y/burglary report
with the police and provide d a copy of that report to the agency. She stated that
she faxed a copy of the police report to B .M., a security specialist , id. at 128,
170-71, on September 26, 2017 , as instructed by A .M., her second -level
supervisor , id. at 181.
¶8 The agency ’s argument that the appellant failed to comply with the
requirements of the Administrative Handbook is not reflected in the testimony of
the proposing and deciding official s in their deposition s. Id. at 41, 112. T he
proposing official stated that the facts were that an employee left a laptop that
was in her car, not in the trunk, which is what the agency require s, and then very
shortly there after , she had a second laptop removed. Id. at 59. The proposing
official stated that, o nce she was notified that there were two laptops that were
missing in a short amount of time, the documentation was assembled by the
regional office to give to the Employee Relations Board5 for their review so that
5 In her petition for review, the appellant contends that she was denied due process
because the Employee Relations Board unduly influenced the agency to remove her.
We have not addressed whether the agency violated the appellant ’s due process rights
becau se we have reversed the agency ’s action and the appellant could not obtain an
additional remedy were she to prove a due process violation. See Van Prichard v.
Department of Defense , 117 M.S.P.R. 88, ¶¶ 7, 25 (2011) , aff’d , 484 F. App’x 489 (Fed.
Cir. 2012) .
5
they could look at what happened and the circumstances and make sure it was
consistent with the agency ’s policy to recommend an action. Id. In short, the
proposing official initiated the disciplinary process sim ply because the appellant
had lost two laptops. The agency presented no evidence to show that the
proposing official considered the circumstances surrounding the second
computer ’s loss in connection with the requirement s of the Administrative
Handbook .
¶9 Similarly, the agency presented no evidence that the deciding official
considered the circumstances surrounding the second computer ’s loss in light of
the requirements of the Administrative Handbook . The deciding official stated
that the fact that the app ellant lost a second laptop in less than five weeks was all
the information that he had. Id. at 126. He admitted that he did not have any
other information rega rding the circumstances of the loss of the second computer .
Id. He stated that he believed r emoval was warranted because “there was a
second laptop lost,”6 and the second laptop was “lost in the complainant ’s home. ”
Id. at 129. Further, the deciding official stated that he did not believe that the
losses were beyond the appellant ’s control.7 Id. at 131.
¶10 We find that the agency presented no evidence contradicting the appellant ’s
detailed statement that she followed the requirements of the Administrative
Handbook. Further, we find that the appellant ’s statement of compliance, that she
6 It might be inferred from the deciding official ’s deposition testimony that he believed
that the charge was based on the loss of two laptop computers in a short period of time.
However, although the notice of proposed removal references the loss of two laptops in
a short period of the time, the charge is Failure to Properly Secure Government Issued
Property , specifically th e laptop that went missing from the appellant ’s house between
September 2 and September 6, 2017. IAF, Tab 4 at 33-34.
7 For unexplained reasons, the September 13, 2017 Incident Report was not provided to
the deciding official, even though the appellant stated that she provided it to the
agenc y. When the deciding official was presented with the Incident Report during his
deposition, he mistakenly believed that it was the Incident Report filed when the laptop
was stolen from the appellant ’s car. IAF, Tab 20 at 131-32.
6
stored the laptop in the closet of her bedroom in her locked house , is credible .
She made no prior inconsistent statements , and her version of events is
uncontradicted and consistent with other evidence , including the reports she made
to her supervisor, the appropriate agency office , and the police. See Goode v.
Defense Logistics Agency , 45 M.S.P.R. 671, 674 n. 2 (1990) (finding that the
principles for resolving credibility issues are properly applied to cases that do not
involve a hearing ); Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987) (finding that, in resolving credibility issues , the Board consider s, among
other things, any prior incon sistent statement by the individual and the
contradiction of the individual ’s version of events by other evidence or its
consistency with other evidence ). The Board is required to review the agency’s
decision on an adverse action solely on the grounds invoked by the agency.
Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 7 (2016). Thus, we
reverse the initial decision ’s findings regarding the charge and find that , given
that it did not show any noncompliance by the appellant with its Admini strative
Handbook, the agency failed to prove the charge of Failure to Properly Secure
Government Issued Property .8
The appellant failed to prove her affirmative defenses of race and sex
discrimination.
¶11 The appellant alleges on review that she sought to gather evidence relevant
to her allegations of race and sex discrimination on the basis of disparate
treatment through discovery and that these efforts were hindered by the agency ’s
failure to respond to her interrogatories and the administrative judge ’s denial of
her motion to compel. PFR File, Tab 1 at 20-21.
8 The appellant alleges that the administrative judge abused her discretion by denying
the appellant ’s motion to compel discovery and denying a number of witnesses
requested by the appellant. PFR File, Tab 1 at 14-17. We need not address the se
allegation s in connection with the merits of the charge given our determination that the
agency has not proven the charge .
7
¶12 Discovery is the process by which a party may obtain relevant information
from another party to an appeal. 5 C.F.R. § 1201.72 (a). Relevant information
includes “information that appears reasonably calculated to lead to the discovery
of admissible evidence. ” Id. What constitutes relevant information in discovery
is to be liberally interpreted, and uncertainty should be resol ved in favor of the
movant absent any undue delay or hardship caused by such request. Mc Grath v.
Department of the Army , 83 M.S.P.R. 48, ¶ 7 (1999). A party to whom a proper
discovery request has been made must either comply or “stat[e] an objection to
the particular request and the reasons for the objection. ” 5 C.F.R. § 1201.73 (b).
The scope of discovery is broad: “[d]iscovery covers any nonprivileged matter
that is relevant to the issues involved in the appeal . . . . ” Baird v. Department of
the Army , 517 F.3d 1345 , 1351 (Fed. Cir. 2008); 5 C.F.R. § 1201.72 (b).
¶13 The appellant was entitled to obtain evidence through discovery to support
her claim of disparate treatment race and sex discrimination . See Redd v. U.S.
Postal Service , 101 M.S.P.R. 182, ¶ 15 (2006) , overru led on other grounds by
Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 46 n.10 (2015) , overruled
in part by Pridgen v. Office of Management and Budge t, 2022 MSPB 31 ,
¶¶ 23-25. The relevance of the appellant ’s discovery req uests focus es on the
extent to which each request is reasonably calculated to lead to the discovery of
admissible evidence in light of the factual matters in dispute . See Ryan v.
Department of the Air Force , 113 M.S.P.R. 27, ¶ 19 (2009). Here, the factual
matter in dispute is whether the agency treated the appellant dis parately from
another similarly -situated employee of a different race and sex. For employees to
be deemed similarly situated for purposes of an affirmative defense of
discrimination based on disparate treatment, all relevant aspects of the appellant ’s
employment situation must be “nearly identical ” to those of the comparator
employees. Adams v. Department of Labor , 112 M.S.P.R. 288, ¶ 13 (2009).
Therefore, comparators must have reported to the same supervisor, been s ubjected
8
to the same standards governing discipline, and engaged in conduct similar to the
appellant ’s without differentiating or mitigating circumstances. Id.
¶14 The appellant ’s efforts to gather relevant evidence regarding alleged
disparate treatment were not hindered by any agency f ailure to respond to the
interrogatorie s challenged on review . See generally IAF, Tabs 13, 15 .
Specifically, to the appellant ’s Interrogatory No. 13, “Please identify all
employees under the supervision of Appellant ’s fi rst-line and second -line
supervisors that have imposed Alternative Discipline for three years prior to
Appellant ’s letter of removal. Please provide race and gender of Employees
provided Alternative Discipline and race and gender of supervisors, ” the agen cy
responded , “The Agency reserves the right to supplement this Answer. No
Alternative Discipline was administered by [A.M.] or [T.N.] for similarly situated
employees in the last three years prior to Appellant ’s removal. ” IAF, Tab 13
at 16. To the appellant ’s Interrogatory No. 14, “Please i dentify all employees
under the supervision of Appellant ’s first -line and second -line supervisors that
have imposed Progressive Discipline for three years prior to Appellant ’s letter of
removal. Please provide ra ce and gender of Employees provided Alternative
Discipline and race and gender of supervisors,” the agency responded, “Agency
objects on the grounds that the Interrogatory is vague because of the term
‘Progressive Discipline.’ Also, Agency objects to sent ence two of the
Interrogatory in that it is duplicative of Interrogatory 13.” Id. at 17.
¶15 The administrative judge denied the appellant’s motion to compel. IAF,
Tab 16. Based on the evidence showing the agency ’s responses to the above
discovery request s, we find that t he appellant ’s assertion on review that the
agency hindered her efforts to discover relevant information regarding her
affirmative defense s of race a nd sex discrimination by failing to respond to her
interrogatories is unavailing. The adm inistrative judge did not abuse her broad
discretion in ruling on discovery matters in denying the appellant ’s motion to
compel discovery regarding her allegations of race and sex discrimination ,
9
particularly given that the above interrogatories do not seek information
regarding similarly -situated comparators . See Boltz v. Social Security
Administration , 111 M.S.P.R. 568, ¶¶ 6-7 (2009) ; 5 C.F.R. § 1201.41 (b)(4).
¶16 Further, the administrative judge properly found that the appellant failed to
prove her allegations of race and sex discrimination. In her deposition, the
appellant testified that sh e wa s not aware of any other employee who misplaced
or lost, had stolen , or otherwise lo st possession of two government -issued
laptops. IAF, Tab 28 at 170-171. Considering the evidence gained through
discovery and the appellant ’s deposition statements, we agree with the
administrative judge that the appellant failed to show that she was treated
disparately based on race or sex. ID at 13-16.
ORDER
¶17 We ORDER the agency to cancel the removal and r estore the appellant
effective Fe bruary 23, 2018. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶18 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management ’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency ’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board ’s Order. If there is a dispute about the amount of back pay, interest due,
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.
¶19 We further ORDER the agency to tell the appellant pr omptly in writing
when it believes it has fully carried out the Board ’s Order and of the actions it has
10
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).
¶20 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 init ial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board ’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and shoul d include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶21 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 timel y 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 APPEL LANT 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.
11
NOTICE OF APPEAL RIG HTS9
The initial decision, as supp lemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a stateme nt of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirement s. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rig hts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
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 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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 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.10 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appea ls of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisa l cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
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.
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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notifie d to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a se paration is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collec t 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 follow ing 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. | GARNER_JANNIECE_AT_0752_18_0357_I_1_FINAL_ORDER_2015840.pdf | 2023-03-28 | null | AT-0752 | NP |
3,355 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_RICHARD_LOUIS_AT_0843_16_0360_B_1_FINAL_ORDER_2015876.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD LOUIS DAVIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0843 -16-0360 -B-1
DATE: March 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Louis Davis , Huntsville, Alabama, pro se.
Cynthia Reinhold , 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 appellant has filed a petition for review of the remand initial decision,
which affirmed the reconsideration decision of the Office of Personnel
Management (OPM) denying his request for payment of a lump sum death benefit
under the Federal Employees’ Retirement System (FERS) . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the f acts 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; o r new and material evidence or legal 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 f or 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’s brother (the decedent), a former Federal employ ee covered
under FERS, passed away on January 28, 2013. Davis v. Office of Personnel
Management , MSPB Docket No. AT-0843 -16-0360 -I-1, Initial Appeal File (IAF),
Tab 6 at 11, 33 -36. On or about September 28, 2014, the appellant filed an
application with O PM seeking payment of the decedent’s lump sum death benefit
under FERS . Id. at 7-10. In the application, the appellant indicated that he and
his other living siblings were the decedent’s only heirs. Id. at 9. According to a
March 24, 2015 report of tel ephone contact written by an OPM representative ,
3
however, “[the appellant] stated that [the decedent] had a biological son but [the
family does] not know where he is. They have tried to reach him, but they have
been unsuccessful.” Id. at 25. In April 20 15, OPM sought additional information
from the appellant related to his application and, in a response dated May 11,
2015, the appellant indicated that “[the decedent] had no biological children.” Id.
at 21. On June 11, 2015, OPM issued an initial decisi on finding the appellant
ineligible to receive the decedent’s lump sum death benefit because the decedent
may have had a biological son who would be entitled to the benefit pursuant to
the statutory order of precedence. Id. at 20. Thereafter, the appella nt submitted
affidavits on behalf of himself and his siblings dated October 1 and November 25,
2015, attesting, among other things, that the decedent “died without any progeny”
and that he “never presented any child or children to our late mother during he r
lifetime nor did he acknowledge or present any child or children to any of us
during [his] lifetime.”3 Id. at 13, 15, 19. In a January 27, 2016 reconsideration
decision, OPM again found that the appellant was not eligible for a share of the
decedent’s lump sum death benefit pursuant to the order of precedence. Id.
at 5-6.
¶3 The appellant appealed OPM’s reconsideration decision to the Board and
requested a hearing. IAF, Tab 1. The administrative judge informed the
appellant of his burden to establish his entitlement to the decedent’s lump sum
death benefit by showing that he and his siblings were eligible to receive the
benefit in accordance with the statutory order of precedence. IAF, Tab 10 at 1 -4.
Specifically, the administrative judge informed th e appellant that he must prove
that the decedent did not have a biological son . Id. at 4. The appellant responded
that he was not aware that the decedent ever fathered any children and submitted
3 The affidavits provide that the appellant and his th ree siblings “individually states
upon each of our oaths that the following information is true to each of our personal
knowledge.” IAF, Tab 6 at 13, 15, 19. However, the affidavits are only signed by the
appellant and the notary public. Id.
4
additional affidavits from three of his siblings attesting that they were not aware
that the decedent had any biological children. IAF, Tab 9 at 4, Tab 14 at 2-4. He
also argued that the Metropolitan Life Insurance Company (MetLife), which
carried the de cedent’s Federal Employees’ Group Life Insurance (FEGLI) policy,
paid the decedent’s siblings on Decemb er 1, 2015, after performing it s “due
diligence” to locate an heir. IAF, Tab 9 at 4. At the telephonic hearing, the
appellant testified that the decede nt never conveyed to him, his siblings, or their
mother that he had any biological children. IAF, Tab 16, Hearing Compact Disc.
When the agency representative ask ed him why he initially told an OPM
employee that the decedent had a biological son, the app ellant responded that he
had only heard a rumor that the decedent may have had a biological son and that
he was “trying to do the right thing” by telling OPM about the potential son. Id.
The appellant explained that the family tried to find the decedent’ s possible son
but that they did not find anyone. Id. Thus, he testified that he believed that the
decedent did not have any biological children. Id.
¶4 After the hearing, the administrative judge issued an initial decision finding
that the appellant was not entitled to the lump sum death benefit because the
decede nt may have a biological son. IAF, Tab 18, Initial Decision (ID). In so
finding, the administrative judge found that the March 24, 2015 report of contac t,
which, as noted above, indicates that the appellant informed the OPM
representative that the decedent had a biological son , was “directly at odds with”
and less credible than his later statements and testimony . ID at 6; IAF, Tab 6
at 25. Therefore, the administrative judge concluded that the appellant and his
siblings were not entitled to the decedent’s lump sum death benefit and affirmed
OPM’s reconsideration decision. Id.
¶5 The appellant timely filed a petition for review of the initial decision.
Davis v. Office of Personnel Management , MSPB Docket No. AT-0843 -16-0360 -
I-1, Petition for Review (PFR) File, Tab 1. On review, the Board found that the
administrative judge failed to properly weigh the evidence and, therefore, vacated
5
the initial decision and remanded the appeal to further deve lop the record and
issue a new initial decision . PFR File, Tab 4, Remand Order (R O), ¶¶ 7-15. The
Board specifically directed the administrative judge to further develop the record
regarding the appellant’s belief that the decedent had a biological son a nd to
order the parties to submit evidence concerning life insurance benefits paid by the
decedent’s FEGLI policy and MetLife’s efforts to determine the proper
beneficiary or beneficiaries . Id.
¶6 On remand, the administrative judge ordered the appellant to submit the
claim form he submitted to MetLife and any letters or correspondence pertaining
to paying the decedent’s life insurance benefit , and ordered OPM to submit any
relevant information in its possess ion regarding payment of the decedent’s life
insurance benefits and efforts made to determine a beneficiary. Davis v. Office of
Personnel Management , MSPB Docket No. AT-0843 -16-0360 -B-1, Remand File
(RF), Tab 5. In response, the appellant submitted the f ollowing documents
pertaining to the decedent’ s FEGLI policy: a Form FE -6 Claim for Death
Benefits under FEGLI completed by the appellant in October 2014 ; a
November 14, 2014 decision awarding the decedent’s FEGLI benefit to his estate
because “the insure d does not have a surviving spouse, was not survived by
children or descendants of any deceased children, and was not survived by
parents ”; and evidence showing that the decedent’s FEGLI benefit was paid to the
appellant. RF, Tab 6 at 4 -12. He also submi tted evidence showing that the Thrift
Savings Plan (TSP) Death Benefits Processing Unit disbursed the decedent’s TSP
death benefit to the appellant . Id. at 13 -14. OPM submitted additional evidence,
including , among other things, an October 28, 2014 state ment from the appellant
on a Form TSP-17, signed under the penalty of perjury, asserting the following:
6
[The decedent’s] son was [born] in Barstow, California around
February 1976 before he left the Marines later that fall. There was
no matrimony. As far as we know, he never [saw] the boy again
since birth. He only talked to his son in 2006 and failed to try to
establish a relationship. My siblings and their children (as well as
my coworker) have been searching since [February] 2013 [on]
Facebook, Spokeo, et al, under the following name s with no success:
Antwan, Ant oine []. His mother [is] Angela [].
RF, Tab 7 at 23. At a supplemental hearing, the appellant testified that his late
mother told him that the decedent m ay have had a son named Antoine with a
woman named Angela in California while serving in the Marine Corps but that
the decedent never admitt ed to him that he had any biological child. RF, Tab 8,
Supplemental Hearing Recording ( SHR ) (testimony of the appellant). He further
testified that the decedent did not offer any information regarding a biological son
when he and his siblings were prepar ing their mother’s obituary after she died .
Id. He asserted that he provided the information regarding the decedent’s
possible son in applications for the decedent’s death benefits in hopes that he
could be found and given the benefits to which he was en titled . Id. The appellant
testified , however, that he has concluded that the decedent must not have had a
biological son since the family has not been able to locate him, and he has not
come forward, in the 4 years since the decedent died . Id. OPM ’s representative
testified that the appellant informed her by telephone that a biological son may
exist but that the family had been unable to locate him. SHR (testimony of OPM
representative).
¶7 In a remand initial decision, the administrative judge again affi rmed OPM’s
reconsideration decision denying payment of the decedent’s lump sum death
benefit to the appellant . RF, Tab 9, Remand Initial Decision (RID). The
appellant has filed a petition for review of the remand initial decision, and the
agency has responded in opposition. Davis v. Office of Personnel Management ,
MSPB Docket No. AT-0843 -16-0360 -B-1, Remand Petition for Review (RPFR)
File, Tabs 1, 4.
7
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 Under FERS , a lump sum annuity benefit is paid to the individual or
individuals surviving the employee and alive when title to the payment arises in
the following order: (1) to the designated beneficiary or beneficiaries ; (2) to the
widow or widower of the employee ; (3) to the child or children of the employee
and desc endants of deceased children by representation; (4) to the parents of the
employee or the survivor of them; (5) to the executor or administrator of the
estate; and (6) to other next of kin of the employee as OPM determines to be
entitled under the laws of the domicile of the employee at the date of his death .
5 U.S.C. § 8424 (d). “For purposes of this subsection, ‘child ’ includes a natural
child and an adopted child, but does not include a stepchil d.” Id. The intestate
succession laws of Arkansas, the state in which the decedent was domiciled when
he died , provide that siblings of an intestate decedent may be entitled to an
inheritance from the decedent ’s estate if there is no surviving descendant, spouse,
or parent . Ark. Code Ann. § 28-9-214 (2016); I AF, Tab 6 at 11.
¶9 Here, as indicated in the Board’s remand order , the parties do not contend,
nor is there any evidence to suggest, that the decedent designated a beneficiary
prior to his de ath, that he had a surviving spouse or surviving parent when he
died, or that there is any executor o r administrator of his estate. RO , ¶ 6. Thus,
pursuant to the order of precedence and the inheritance laws of Arkansas, the
decedent’s siblings are eligi ble to receive the lump sum death benefit if they can
show that the decedent did not have any natural or adopted children. See
5 U.S.C. § 8424 (d); Ark. Code Ann. § 28-9-214 (2016). The appellant, as the
applicant for benefits, ha s the burden to establish , by a preponderance of the
8
evidence , that he is entitled to the benefits sought.4 See 5 C.F.R.
§ 1201.56 (b)(2)(i i).
¶10 In the remand initial decision, the admin istrative judge considered the
appellant’s supplemental hearing testimony and that of OPM ’s representative ,
who spoke to the appellant on March 24, 2015, as well as the additional evidence
submitted by the parti es on remand , and concluded that the appellant failed to
show by preponderant evidence that the decedent did not have a biological son.
RID at 4 -6. In so finding , he noted that the appellant’s M ay 11, 2015 signed
statement and his November 25, 2015 affidavit , both of which attested that the
decedent did not have any biological children , were directly at odds with the
following : (1) his own hearing testimony that his mother told him that the
decedent has a son named Anto ine who was mothered by Angela in California
while the decedent served with the Marine Corps; ( 2) OPM ’s representative’s
testimony that the appellant unequivocally told her the decedent had a son; and
(3) his October 28, 2014 sworn statement asserting that the decedent has a son
and de tailing his knowledge of that son. RID at 5. Because the appellant denied
the existence of a biological son only after OPM ’s representative informed him
that a biological son would bar him from receiving the decedent’s lump sum death
benefit, the adminis trative judge found that the appellant had a personal financial
motive to materially change his position on the issue, which undercut the
credibility of his subsequent statements. RID at 5 -6. The administrative judge
also found that the appellant’s October 28, 2014 statement —in which he
unequivocally stated , under penalty of perjury, that the decedent had a son and
provided specific details about the son, his mother , and the decedent’s attempt to
establish a relationship with him in 2006 —was more credible than his subsequent
4 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
9
statements to the contrary . RID at 6. Finally , the administrative judge found that
the appellant’s contention that the decedent never “acknowledged” a biologi cal
son to their late mother to be un worthy of credit because he unequivocally
testified that the source of his knowledge about the decedent’s son was his
mother . Id.
¶11 On review, the appellant does not challenge an y of the administrative
judge’s credibility findings but argues that he has proven that the decedent did
not have a biological son because one has not come forward in the 4 years since
the decedent’s death . RPFR File, Tab 1 at 4 -5. He explains that, under Arkansas
state law, an illegitimate child may inherit from his father only when, among
other condit ions, “an action is commenced or claim asserted against the estate of
the father in a court of competent jurisdiction within one hundred eighty (180)
days of the death of the father .” Id. at 4 (quoting Ark. Code Ann. § 28-9-209
(2016) (emphasis added) ).
¶12 Under section 8424(d), OPM looks to the state law to determine who
constitutes an employee’s “next of kin” only after it determines that no one higher
on the statutory order of precedence , such as the employee’s natural or adopted
children, exists to take the FERS lump sum death benefit. 5 U.S.C. § 8424 (d).
State law is irrelevant , however, to determining whether an employee’s children,
if any, are entitled to receive the employee’ s FERS lump sum death benefit . Id.
Accordingly, the appellant’s assertion that the decedent’s possible biological son
has failed to appear within 180 days of the decedent’s death does not establish
that the decedent does not have a biological son who is eligible to take his lump
sum death benefit in precedence to the appellant and his siblings . Id. Moreover,
under FERS, an applicant has up to 30 years after the death of the employee on
whose service the benefit is based to file an application for paymen t of the lump
sum death benefit. 5 C.F.R. § 843.103 (a). The 180 -day filing period imposed
upon an “illegitimate child” seeking to inherit from his father’s estate under
10
Arkansas state l aw does not affect the regulatory 30 -year filing period for the
decedent’s children, if any, to apply for his FERS lump sum death benefit. Id.
¶13 As noted above, although the appellant disagrees with the remand initial
decision, he does not challenge the administrative judge’s finding that his
May 11, 2015 signed statement and November 25, 2015 affidavit denying the
existence of a biological son were less credible than his other statements
indicating that the decedent had or may have had a biological son, including his
October 28, 2014 statement on the Form TSP -17, his March 24, 2015 statement to
OPM ’s representative, and his supplemental hearing testimony . PFR File, Tab 1;
RID at 4 -6. The Board must defe r to an administrative ju dge’ s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing and may overturn such
determinations only when it has “sufficiently sound” reasons for d oing so. Haebe
v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, t he
appellant has not alleged that there is any reason to overturn the administrative
judge’s credibility determination , and we discern no sufficiently sound reason to
do so. Id. Rather, we have reviewed the record and agree with the administrative
judge’s determination that the appellant has not shown by preponderant evidence
that the dec edent did not have a biological son . See Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the
administrative judge ’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility ).
¶14 While appreciating the appellant’s difficulty of attempting to prove a
negative , neither the Board nor OPM has any authority to exercise discretion in
appl ying the order of precedence established by statute. Landsberger v. Office of
Personnel Management , 50 M.S.P.R. 13 , 17 (1991), aff’d , 956 F. 2d 1174 (Fed.
Cir. 1992) (Table). Accordingly, we agree with the administrative judge’s
determination that OPM’s reconsideration decision must be affirmed.
11
NOTICE OF APP EAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is mos t
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main pos sible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses th e services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a c ivil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
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 b y the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 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.6 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 Ac t, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit c ourt 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.
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 | DAVIS_RICHARD_LOUIS_AT_0843_16_0360_B_1_FINAL_ORDER_2015876.pdf | 2023-03-28 | null | AT-0843 | NP |
3,356 | https://www.mspb.gov/decisions/nonprecedential/CHILDRESS_NICOLE_E_CH_0752_14_0190_B_1_FINAL_ORDER_2015162.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NICOLE E. CHILDRESS,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CH-0752 -14-0190 -B-1
DATE: March 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicole E. Childress , Saint Louis, Missouri, pro se.
Diana R. Stallard , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The a ppellant has filed a petition for review of the remand initial decision,
which sustained her removal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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
of material fact; t he initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to find that the removal penalty is reasonable, we AFFIRM the
remand initial decision.
BACKGROUND
The initial appeal
¶2 The agency removed the appell ant from the GS –8 seasonal Cont act
Representative3 position with the Internal Revenue Serv ice (IRS) based on the
charge of receiving Government funds to which she was not entitled. Childress v.
Department of the Treasury , MSPB Docket No. CH-0752 -14-0190 -I-1, Final
Order, ¶ 2 (Apr. 19, 2016). The agency specified that, during 6 separate weeks in
2009, 2010, and 2011, the appellant received unemployment benefits to which she
was not entitled because of her earnings from the IRS. Id. The appellant
appealed the agency’s action and, during the course of proceedings below, had
alleged a number of affirmative defenses. Id.
3 At various points throughout litigation, the appellant’s position was erroneously
referred to as a “Contract Specialist.” See note 4, infra .
3
¶3 The administrative judge found that the agency proved the charged
misconduct, that the appellant raised a single affirmative defense —that of
harmful procedural error based on the agency’s alleged violation of the Internal
Reven ue Manual (IRM) —and that the appellant failed to prove her claim. Id.,
¶¶ 3, 6-7. The administrative judge also found that, contrary to the appellant’s
assertions, the notice of proposed removal complied with the IRM, the agency
established nexus between the proven misconduct and the efficiency of the
service, and the removal penalty was within the bounds of reasonableness. Id.
¶4 In her petition for review, the appellant contended that the administrative
judge erred in her findings regarding nexus and pe nalty. The Board found that
the administrative judge should have provided notice to the appellant of the
relevant burdens and elements of proof for all of her affirmative defenses raised
below. Id., ¶ 8. The Board vacated the administrative judge’s find ings regarding
nexus and penalty but did not disturb her finding that the agency proved the
charged misconduct. The Board remanded the case to allow development of the
record on the appellant’s discrimination, harmful procedural error, “not in
accordance with law,” and due process claims. Id.
The remand appeal
¶5 On remand, the appellant alleged only that the agency’s action was not in
accordance with law in violation of 5 U.S.C. § 7513 . Childress v. Department of
the Treasury , MSPB Docket No. CH-0752 -14-0190 -B-1, Appeal File (B -1 AF),
Tab 27, Remand Initial Decision ( RID) at 4. She withdrew all of her other
affirmative defenses.4 Id.
4 Initially on remand, the appellant alleged as affirmativ e defenses only violations of
5 U.S.C. § 2302 (b)(10) and 5 U.S.C. § 7513 “(A)” [sic] . B-1 AF, Tab 11 at 4, Tab 13
at 5. During the heari ng, the appellant withdrew her affirmative defense that the agency
violated section 2302(b)(10). B -1 AF, Tab 26, Hearing Transcript at 4 (testimony of
the appellant).
4
¶6 The administrative judge found that, in cases of off -duty misc onduct such
as the appellant’s, the agency meets i ts burden under 5 U.S.C. § 7513 by
establishing nexus between its grounds for an adverse personnel action and either
the employee’s ability to acco mplish his or her duties satisfactorily or some other
legitimate Government interest promoting the efficiency of the service. R ID at 6.
She found that the agency established nexus here by showing through the
testimony of the deciding official that the ap pellant’s conduct adversely affected
management’s trust and confidence in her job performance and interfered with the
agency’s mission of administering the nation’s tax system. RID at 6-7. She
found that the appellant’s personal integrity in honestly and accurately reporting
information to Governmental entities directly impacts the agency’s mission. RID
at 7-8. In the remand initial decision, the administrative judge did not address
whether the penalty was reasonable.
¶7 In her current petition for revie w, the appellant argues that the agency failed
to show nexus between her misconduct and the efficiency of the service .
Childress v. Department of the Treasury , MSPB Docket No. CH-0752 -14-0190 -
B-1, Petition for Review ( PFR) File, Tab 1. She contends that the deciding
official provided no evidence that the agency had lost trust in her or that her
misconduct adversely affected the agency’s mission. Id. at 8-9. Rather, the
appellant asserts that the evidence is to the co ntrary. Id. at 6-9. For example, she
states that after her proposed removal, she was select ed for a Cont act
Representative Classroom Instructor position,5 showing that the agency had not
lost trust and confidence in her. Id. at 7. She also argues that the fact that she
5 The appellant notes that the administrative judge improperly state d that the appellan t
was a Cont act Representative with the Errors Resolution Department. PFR File, Tab 1
at 7. The appel lant states that she was a Cont act Representative with the Kansas City
Accounts Management Department stationed in St. Louis, Missouri. Id. To the exte nt
that the administrative judge’s misstatement constituted error, it was harmless and
did not affect the appellant’s substantive rights. Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984).
5
continued to work her normal duties and received exceptional performance
ratings after the agency learned of her misconduct shows that the agency had not
lost trust in her and that her misconduct did not interfere with the agency’s
missio n.6 Id. at 7-9. She asserts that she had no face -to-face interaction with the
taxpaying public and was not a public figure designated to speak on behalf of the
agency. Id. at 7.
¶8 The appellant also reiterates her assertion that she was subjected to a
disparate penalty. PFR File, Tab 1 at 10-11. She contends that one of the
employees to whom she compared herself received a 30 -day suspension for
essentially the same misconduct as hers. Additionally, she asserts that the
penalty was not within the bound s of reasonableness. Id., at 11. She asserts that
the deciding official admitted to not considering relevant Douglas factors.7 Id.
She contends that she is a candidate for rehabilitation because she took
responsibility for her misconduct, showed that s he had repaid the wrongly
received unemployment payments, and had an excellent work record. Id.
6 The appellant cites Hovanec v. Department of the Interior , 67 M.S.P.R. 340 (1995 ) in
support of her assertion that her supervisors had not lost trust in her and that her
misconduct did not affect the agency’s mission. PFR File, Tab 1 at 7. She ar gues that
an agency cannot claim loss of trust when it promotes an employee while aware of her
off-duty misconduct. Id. Hovanec is distinguishable from the appellant’s case,
however. Importantly, the appellant was not promoted, but was given a collatera l duty.
IAF, Tab 27, Exhibit C. Further, the appellant in Hovanec did not receive personal gain
from his misconduct and the Board noted that there appeared to be some question
regarding his mental state at the time of his misconduct. Hovanec , 67 M.S.P.R . at 347.
Here, the appellant’s misconduct did result in personal gain and there is no issue of her
mental state at the time of her misconduct.
7 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 penalty to
be imposed for an act of misconduct.
6
DISCUSSION OF ARGUME NTS ON REVIEW
The agency met its burden to establish nexus.
¶9 Removals appealable to the Board under 5 U.S.C. §§ 7512 , 7513(d), and
7701, may be taken only for such cause as will promote the efficiency of th e
service. 5 U.S.C. § 7513 (a); see Scheffler v. Department of the Army ,
117 M.S.P.R. 499 , ¶ 9 (2012), aff’d , 522 F. App’x 913 (Fed. Cir. 2013) . An
action promotes the efficiency of the service only if there is a nexus between the
proven misconduct and the efficiency of the service. Id. The nexus requirement
means there must be a clear and direct relationship between the articulated
grounds fo r an adverse action and either the employee’s ability to accomplish his
or her duties satisfactorily or some other legitimate Government interest. Id.
(citing Merritt v. Department of Justice , 6 M.S.P.R. 585 , 596 (1981), modified by
Kruger v. Department of Justice , 32 M.S.P.R. 71, 75 n.2 (1987)). An agency may
show a nexus between off -duty misconduct and the efficiency of the service by
three means : (1) a rebuttable presumption in certain egregious circumstances;
(2) preponderant evidence that the misconduct adversely affects the appellant’s or
co-workers’ job performance or the agency’s trust and confidence in the
appellant’s job performance; or ( 3) preponderant evidence that the misconduct
interfered with or adversely affected the agency’s mission. Scheffler ,
117 M.S.P.R. 499, ¶ 10; Kruger , 32 M.S.P.R. at 74.
¶10 Thus, a removal action taken against an employee such as the appellant will
be sustained only if the agency can prove by preponderant evidence that it
promotes the efficiency of the service. An action that does not promote the
efficiency of the service is not in accordance with law and must be reversed. See
generally Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 684 (1991).
¶11 As the administrative judge found, the deciding official testified that
management had lost trust in the appellant’s integrity to effectively ful fill the
agency’s mission. R ID at 4, 7. Thus, the agency established t hat the appellant’s
conduct affected management’s trust and confidence in her job performance.
7
Additionally, the agency established that the appellant’s misconduct adversely
affected the agency’s mission. Given the agency’s mission of assuring that
taxpa yers comply with their obligations, it is relevant that employees who advise
the public about legal requirements make sound decisions that are based on
policies, directives, and law. Royster v. Department of Justice , 58 M.S.P.R. 495,
500 (1993) (stating that an agency is not required to demonstrate a specific
impact on the appellant’s job performance or the efficiency of the service when
the employee’s off -duty misconduct is antithetical to the agency’s mission);
Kruger , 32 M.S.P.R. at 75–76 (same). We find that, under the circumstances of
this case, the appellant’s poor decisions regarding the policies, directives, and law
around collectin g unemployment benefits made the agency lose trust in her
integrity and abilities and adversely affected the agency’s mission.
¶12 The appellant proffered uncontested evidence of her successful job
performance, which is a factor in her favor. Further, there is no showing that the
appellant’s misconduct was publicized or a matter of notoriety. Notwithstanding
the relevancy of these facts, though, we find that they do not rebut the inference
that arises “from the relationship between the misconduct and the ag ency’s
mission.” Kruger , 32 M.S.P.R. at 75. The appellant’s good performance is
outweighed by the agency’s need for a trustworthy employee. Therefore, we find
that there is a nexus between the sustained misconduct and the efficiency of the
service warra nting disciplinary action. Because the appellant did not show that
the agency’s action violated 5 U.S.C. § 7513 , she failed to show that it was not in
accordance with law.
The agency showed that the removal penalty was within the bounds of
reasonableness for the sustained misconduct.
¶13 As noted, the administrative judge did not address the reasonableness of the
penalty on remand. Because the Board vacated the initial decision’s findings
regardin g the penalty when it remanded the appeal, we here make specific
findings on the reasonableness of the penalty.
8
¶14 When the agency’s charge is sustained, the Board reviews the penalty only
to determine whether the agency considered all the relevant factors and exercised
management discretion within the tolerable limits of reasonableness. See Ellis v.
Department of Def ense, 114 M.S.P.R. 407 , ¶ 11 (2010). The Board must give due
deference to the agency’s primary discretion in maintaining employee disc ipline
and efficiency. Id. The Board will mitigate a penalty only when the Board finds
that the agency did not weigh the relevant factors or that the penalty clearly
exceeds the bounds of reasonableness. Id.
¶15 In analyzing a penalty, the nature and seri ousness of the appellant’s offense
is the most significant factor. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173 ,
¶ 14 (2010); Martin v. Department of Transportation, 103 M.S.P.R. 153 , ¶ 13
(2006), aff’d, 224 F. App’x 974 (Fed. Cir. 2007) (Table) . In the i nstant case, the
charge of claiming and receiving Government benefits to which an employee
clearly is not entitled is a serious offense ; an agency is entitled to expect honesty
and truthfulness from its employees in every aspect of their employment. Shane
v. Department of the Army , 64 M.S.P.R. 269 , 272 (1994). Such improper actions
by an employee reflect adversely on the employee’s reliability , veracity,
trustworthiness, and ethical conduct. Dogar v. Department of Defense ,
95 M.S.P.R. 52 , ¶ 19 (2003) (citing Seas v. U.S. Postal Servi ce, 78 M.S.P.R. 569 ,
578 (1998) ), aff’d , 128 F. App’x 156 (Fed. Cir. 2005) (Table) ; Shane ,
64 M.S.P.R. at 272 .
¶16 At the hearing, the deciding official gave a detailed, well -reasoned
explanation of her decision to imp ose the penalty of removal, which showed that
she carefully considered all of the relevant Douglas factors. I-1 HT (testimony of
the deciding official). She testified that she found the appellant’s actions of
filing for unemployment compensation to be re peated, intentional , and for private
gain. Id. at 22, 35, 37 -40, 71 -72 (testimony of the deciding official). She
indicated that the appellant was on specific notice from the State of Missouri that
she could claim unemployment compensation benefits only f or weeks spent in a
9
nonpay status. Id. at 35 (testimony of the deciding official). She also clarified
that she did not consider the appellant’s actions to constitute a crime or theft,
despite the state’s recommendation for Federal prosecution, but she st ill deemed
the misconduct serious. Id. at 85-86, 88 (testimony of the deciding official).
¶17 The deciding official also testified that the appellant interacted with the
public on a daily basis on behalf of the agency and therefore must be trustworthy
given the nature of her work. Her duties involved interpreting a complex subject
matter and an ability to convey those interpretations to the taxpayer. Her actions
of improperly claiming Government benefits resulted in a loss of management’s
trust in her. Id. at 30-31, 48, 56 -57 (testimony of the deciding official). The fact
that the appellant’s interactions with the public were not in -person is immaterial.
The appellant regularly interacted with taxpayers and thus was metaphorically the
face of the agency.
¶18 In challenging the agency’s penalty determination, the appellant raised a
claim of disparate penalties. The Federal Circuit has held that when an employee
raises an allegation that she received more severe discipline than another
employee, the proper i nquiry is whether the agency knowingly treated employees
differently “in a way not justified by the facts, and intentionally for reasons other
than the efficiency of the service.” Facer v. Department of the Air Force ,
836 F.2d 535 , 539 (Fed. Cir. 1988). As part of the oral reply to the proposed
removal, the appellant’s union representative offered “comparator” cases
involving employees who e ngaged in misconduct similar to that with which the
appellant was charged. IAF, Tab 5, Subtab 4d, at 18-20. In her prehearing
submission, the appellant offered nearly 200 pages of documents regarding
comparator employees. IAF, Tab 27. However, at the h earing, the appellant
questioned the deciding official about only one comparator employee. IAF,
Tab 32, Hearing Transcript (I -1 HT) at 78-85 (testimony of the deciding official).
This comparator’s misconduct involved improper receipt of Government funds,
specifically food stamps and cash from the Kansas City Department for Children
10
and Family. Id. The comparator also incorrectly reported her income from the
IRS and another employer. As a penalty, the comparator employee received a
30-day suspension. T his comparator employee’s disciplinary action, however,
was not decided by the same deciding official in the appellant’s case, and so the
totality of the facts in that case was not readily known by her. Consequently, we
find that the difference in treatme nt was not done knowingly and intentionally.
Also, the deciding official did opine that if the comparator employee’s case had
been proposed to her for decision, she would have sustained the removal as
warranted. Id. at 84.
¶19 Further countering the appell ant’s assertion of disparate treatment, the
agency offered uncontroverted evidence that the Kansas City IRS campus, over
which the deciding official and another manager presided as directors, proposed a
total of 30 removals from January 2013 through Septem ber 2014 for the offense
of receiving Government benefits to which the employees were not entitled. IAF,
Tab 26 at 59-60. All of those cases eventually resulted in either a removal or a
resignation, save for the one case the appellant highlighted at the hearing.
However, that case did not involve unemployment compensation, or the same
deciding official, while the instant case and the 29 other cases identified by the
agency did involve charges of obtaining unemployment compensation when not
entitled and d id result in either removals or resignations in lieu of removals.
Thus, we find that the administrative judge correctly determined that the
appellant did not establish that she was subjected to a disparate penalty.
¶20 The deciding official considered as mi tigating factors the appellant’s
successful performance appraisals and lack of prior discipline. I-1 HT at 18
(testimony of the deciding official). However, she found the appellant not to be a
good candidate for rehabilitation with a lesser penalty, and in fact felt the
appellant’s work history and performance could be viewed in both an aggravating
and mitigating light. Id. (testimony of the deciding official). The deciding
official believed that the remorse the appellant expressed for her actions was
11
minimal and that she did not provide an explanation for her misconduct. Id. at 38
(testimony of the deciding official). The deciding official testified that, while the
agency’s penalty guide provided for a penalty ranging from a 14 -day suspension
to a rem oval for a first offense of the charged misconduct, removal was
appropriate here, given the intentional and repetitive nature of the appellant’s
actions, as well the need for the agency to remain consistent in cases involving
this type of misconduct when w arranted. Id. at 39-41 (testimony of the deciding
official).
¶21 The Board has long recognized that dishonest activity by a Federal
employee raises serious doubts regarding the employee’s reliability,
trustworthiness, and continued fitness for employment. Scheffler , 117 M.S.P.R.
499, ¶ 16; Whelan v. U.S. Postal Service , 103 M.S.P.R. 474 , ¶ 13 (2006) , aff’d ,
231 F. App’x 965 (Fed. Cir. 2007) (Table) ; Kirkpatrick v. U.S. Postal Service ,
74 M.S.P.R. 583 , 591 (1997). Therefore, we find that the agency established that
the penalty of removal is within the bounds o f reasonableness for the sustained
misconduct.
NOTICE OF APPEAL RIGHTS8
The remand 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 th e
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the
following summary of available appeal rights, the Merit Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation and the rights described below do not represent a statement of how
8 Since the issuance of the in itial decision in this matter, the Board has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.
12
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should im mediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each o f the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition t o the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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
14
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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o 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 re view either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
9 The original statutory provision that provi ded for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file pet itions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Novem ber 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_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHILDRESS_NICOLE_E_CH_0752_14_0190_B_1_FINAL_ORDER_2015162.pdf | 2023-03-27 | null | CH-0752 | NP |
3,357 | https://www.mspb.gov/decisions/nonprecedential/DUGGER_LAURA_C_CH_0752_17_0129_I_1_FINAL_ORDER_2015204.pdf | FUNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAURA C. DUGGER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0129 -I-1
DATE: March 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laura C. Dugger , Fishers, Indiana, pro se.
Lisa M. Clark , Esquire and Stacey Letner , Esquire, Akron, Ohio, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
materia l fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decisio n were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not a vailable when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude tha t the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for 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 retired from the GS -13 Lead Human Re sources Specialist
position effective December 1, 2016, three days before the agency ’s decision to
remove her based on charges of misconduct was to become effective. Initial
Appeal File (IAF), Tab 1 at 6, 8. The appellant filed a Board appeal alleging that
she was forced to retire because she did not want the removal on her record. Id.
at 6. The administrative judge issued an initial decision that dismissed the appeal
because , after she filed her appeal, the appellant failed to provide any of the
required submissions to proceed with it . IAF, Tab 20, Initial Decision (ID) at 2.
¶3 The appellant has petitioned for review, alleging that she complied with all
“Orders ” to the best of her ability and claiming that she has “FEDEX ” receipts to
show such. Petition for Review (PFR) File, Tab 1 at 3. She also states that she
3
sent the Board a copy of a request for discovery, but the Board returned it.3 Id.
at 3-4. The agency has responded in opposition to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVI EW
¶4 The sanction of a dismissal with prejudice is a severe sanction, and the
Board has held that it is only appropriate when necessary to serve the ends of
justice and should only be imposed when (1) a party has failed to exercise due
diligence in complying with Board orders; or (2) a party has exhibited negligence
or bad faith in its efforts to comply. Williams v. U.S. Postal Service ,
116 M.S.P.R. 377 , ¶ 7 (2011) (citing Chandler v. Department of the Na vy,
87 M.S.P.R. 369 , ¶ 6 (2000)). Absent an abuse of discretion, the Board will not
reverse an administrative judge ’s determination regarding sanction s. Davis v.
Department of Commerce , 120 M.S.P.R. 34 , ¶ 1 8 (2013); see 5 C.F.R.
§ 1201.43 (b).
¶5 We find that the administrative judge did not abuse her discretion in
imposing the sanction of dismissal with prejudice. The record reflects that ,
contrary to the appellant ’s assertion in her petition f or review, she failed to
provide any of the requi red submissions in this case. For example, s he failed to
respond to the administrative judge’s first or second jurisdictional orders, IAF,
Tab 3, 17, or to either of the administrative judge’s two affirmati ve d efense
orders, IAF, Tabs 4, 16. Additionally, the appellant failed to appear for the
scheduled prehearing conference. IAF, Tab 9 at 4, Tab 19; ID at 3. The
appellant ’s statement on review that she complied with the administrative judge’s
3 In her petition for review, the appellant notes t hat the initial decision states that she
alleges that “the Board ” coerced her retirement and clarifies that she is alleging that the
agency coerced her retirement. PFR File, Tab 1 at 4. As the appellant asserts, in one
sentence, the initial decision stat es that the appellant “alleges the Board coerced her
retirement. ” ID at 1. However, t he initial decision in its entirety makes clear that the
appellant is alleging that the agency coerced her retirement. The statement that “the
Board ” coerced the appell ant’s retirement is a typographical error.
4
orders to the best of her ability and that she has receipts to show that she made
submissions below is wholly unsupported. In her petition for review, she
references Federal Express receipts. PFR File, Tab 1 at 3. However, she has not
submitted copies of those receipts with her petition for review.
¶6 In addition, t he appellant ’s submission regarding discovery was properly
returned and is not part of the record . IAF , Tab 18. The administrative judge ’s
acknowledgment order provided basic discovery instruct ions to the appellant and
referred her to the applicable regulations. IAF, Tab 2 at 3 (citing 5 C.F.R.
§§ 1201.71 –1201.85). Those basic instructions and the corresponding regulations
both reflect an expectation that the parties would start and complete discovery
with minimum Board intervention. IAF, Tab 2 at 3; see King v. Department of
the Navy , 98 M.S.P.R. 547 , ¶ 10 (2005) (recognizing that a party does not need
the Board ’s approval to engage in discovery, and the Board generally only
becomes involved in discovery matters if a party files a motion to compel), aff’d,
167 F. App’x 191 (Fed. Cir. 2006); 5 C.F.R. § 1201.71 . Further, after her
submission regarding discovery was returned, the administrative judge issued the
appellant a Memorandum and Ord er to Show Cause, which clearly informed the
appellant that failure to respond could result in her appeal being dismissed with
prejudice, and the appellant did not respond. IAF, Tab 19.
¶7 Based on the foregoing circumstances, we agree with the administrat ive
judge ’s finding that the appellant failed to exercise due diligence in prosecuting
her appeal, and we affirm the dismissal with prejudice4 for failure to prosecute.
See, e.g. , Williams , 116 M.S.P.R. 377 , ¶¶ 2-4, 9-12 (affirming the administrative
4 The initial decision “dismissed ” the appeal. ID at 1, 3. The initial decision does not
state that the appeal is dismissed with prejudice. However, the Memorandum an d Order
to Show Cause issued by the administrative judge inform ed the appellant that her appeal
might be dismissed with prejudice. Thus, w e find that the administrative judge ’s intent
was to dismiss the appeal with prejudice. Nonetheless, in this F inal Order we make
clear that the appeal is dismissed with prejudice.
5
judge ’s decision to dismiss an appeal for failure to prosecute because the
appellant failed to respond to multiple Board orders); Heckman v. Department of
the Interior , 106 M.S.P.R. 210 , ¶ 16 (2007) (finding that the administrative judge
did not abuse her dis cretion by dismissing the appellant ’s claims for failure to
prosecute when the appellant did not comply with multiple orders over a period of
nearly 2½ months).
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 req uirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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.
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 ad vise which option is most appropriate in any matter.
6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
7
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method r equiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the 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.
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 Revie w Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circu it court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information 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 | DUGGER_LAURA_C_CH_0752_17_0129_I_1_FINAL_ORDER_2015204.pdf | 2023-03-27 | null | CH-0752 | NP |
3,358 | https://www.mspb.gov/decisions/nonprecedential/OBRIEN_JOHN_D_DA_300A_16_0525_I_1_FINAL_ORDER_2014704.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN D. O ’BRIEN,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-300A -16-0525 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John D. O ’Brien , Waxahachie, Texas, pro se.
Jennifer Merkle , 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
dismissed his employment practices and suitability action appeal for lack of
jurisdiction . Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
circumstances: th e 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 duri ng 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 availabl e 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 full y
considering the 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 t he Board ’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant, a GS -14 Section Chief with the agency ’s Bureau of Prisons,
applied for four GS-15 Warden vacancies between 2014 and 2016. Initial Appeal
File (IAF), Tab 1 at 1 , 5; Tab 4 at 4; Tab 5 at 16 -18. Following notification that
he did not meet the qualifications for the last of those announcements,
MSS -2016 -0009, the appellant filed a request for secondary review of h is
disqualification , which the agency affirmed on the basis that he lacked the
necessary specialized experience for the position. IAF, Tab 4 at 10-19.
¶3 The appellant timely appealed to the Board the a gency ’s decision not to
select him, identifying his nonselection as a harmful procedural error and/ or a
prohibited personnel practice . IAF, Tab 1 at 5. The administrative judge issued
an acknowledgment order in which he notified the appellant that the Board
generally does not have jurisdiction over nonsel ection claims and identified the
exceptions when it does, such as employment practices appeals under 5 C.F.R.
3
§ 300.103 or negative suitability determinations under 5 C.F.R. § 731.501 . IAF,
Tab 2 at 2 -7.
¶4 Without holding the appellant ’s requested hearing, t he administrative judge
issued an initial decision dismissing the appeal , concluding that the appellant
failed to nonfrivously allege Board jurisdiction over the appeal of his
nonselection as either an employment practice s claim or a negative suitability
action . IAF, Tab 10, Initial Decision (ID). The administrative judge also found
that the Board lacked independent jurisdiction over the appellant ’s harmful
procedural error and prohibited personnel practices claims . ID at 6-8.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 On December 8, 2016, the appellant filed a request to reopen an appeal
dismissed without prejudice, which the Board docketed as an untimely petition
for review. Petition for Review (PFR) File, Tab 1. The agency has responded to
the petition for review.3 PFR File , Tab 2. In his petition for review , the appellant
challenges the merits of the findings below, arguing that the administrative judge
incorrectly characterized his appeal as a nonselection claim and erred in
determining that the agency was not misapplying qualification standards of the
Office of Personnel Management (OPM) when it repe atedly found he was not
qualified for the Warden position. PFR File , Tab 1 at 4-5.
¶6 As the administrative judge correctly noted, the Board has jurisdiction over
an employment practices appeal under 5 C.F.R. § 300.104 (a) when the following
conditions are met: (1) the appeal concern s an employment practice that OPM is
involved in administering; and (2) the appellant make s a nonfrivolous allegation
that the employment practice violated one of the “basic requirements” for
3 The agency argues that the appellant ’s petition for review was unti mely filed by 1 day.
PFR File, Tab 2 at 5 -6. Because we dismiss this appeal on jurisdictional grounds, we
need not address the question of the timeliness of the petition for review. Alston v.
Social Security Administration , 95 M.S.P.R. 252 , ¶ 19 (2003), aff’d, 134 F. App’x 440
(Fed. Cir. 2005) .
4
employment practices set forth in 5 C.F.R. § 300.103 . Sauser v. Department of
Veterans Affairs , 113 M.S.P.R. 403 , ¶ 6 (2010) ; ID at 4 .
¶7 On review, the appellant does not claim that any employment practice
administered by OPM viola ted the “basic requirements” for employment practices
set forth in 5 C.F.R. § 300.103 . PFR File, Tab 1 at 4 -5; see Mapstone v.
Department of the Interior , 106 M.S.P.R. 691 , ¶¶ 11 -15 (2007) , modified by
Mapstone v. Department of the Interior , 110 M.S.P.R. 122 , ¶ 7 (2008) . Nor does
he allege that that the qualification requirements were not “rationally related” to
the Warden position. See Sauser , 113 M.S.P.R. 403 , ¶¶ 8 -10 (finding that an
appellant established jurisdiction over an employment practices appeal based on
an allegatio n that an agency misapplied OPM qualification standards because he
alleged that the standards were not rationally related to performance in the
position to be filled) .
¶8 Instead, the appellant claims only that the agency “misapplied” an existing
OPM standard by “selectively” and “systematically and willfully” interpreting the
qualification standards in a manner that resulted in the qualification of only
individuals who previously have performed in the Associate Warden position.
PFR File, Tab 1 at 4 -5; IAF, T ab 4 at 15. The appellant asserts that , by the
agency narrowly interpreting OPM’s qualification standards, qualified applicants
were denied the opportunity to compete for positions. PFR File, Tab 1 at 5.
¶9 The Board has held that an agency ’s “misapplication” of a valid OPM
requirement also may constitute a colorable employment practices claim. Sauser ,
113 M.S.P.R. 403 , ¶ 7 (citing Prewitt v. Merit Systems Protection Board ,
133 F.3d 885 , 887 (Fed. Cir. 1998) ); Holse v. Department of Agriculture ,
97 M.S.P.R. 624 , ¶ 6 (2004). However, to constitute a misapplication of a valid
OPM requirement, OPM must have been involved in a “significant way ” in the
administratio n of the qualification standard misapplied by the agency. Prewitt ,
133 F.3d at 888 ; Mapstone , 106 M.S.P.R. 691, ¶ 14 . In Dowd v. Office of
Personnel Management , 745 F.2d 650 , 651 (Fed. Cir. 1984) , for example, the
5
appellant challenged an agency finding that he was ineligible for a position based
on the hiring agency’s application of OPM’s time -in-grade regulations , and o ur
reviewing court affirmed the Board’s dismissal of the appeal for lack of
jurisdiction because “OPM playe d no part in the ineligible rating given to [the]
petitioner ,” and thus “OPM had not applied any employment practice to [the]
petitioner .” Likewise, in Manno v. Department of Justice , 85 M.S.P.R. 696 , ¶ 8
(2000) , the Board found that it lacked jurisdiction over an emplo yment practices
appeal when the appellant failed to show that OPM had any involvement in the
alleged mishandling of his application for promotion .
¶10 In the instant case, n othing in the record indicates that OPM was at all
involved in administering or reviewing the additional specialized qualification
requirements that the agency considered in evaluating applicants for the Warden
position. Instead, the appellant is attempting to challenge how the agency
evaluated the specialized supervisory/managerial experience he provided on his
application and the fact that his experience was ultimately assessed to be
insufficiently broad to meet the agency ’s needs for the Warden position . PFR
File, Tab 1 at 4 -5; IAF, Tab 1 at 7 -9. Beyond his conclusory allegation that the
agency was too selective in applying OPM ’s requirements to “exclude qualified
applicants ,” the appellant does n ot explain how the agency ’s determination that
his experience was insufficient, or the fact that it identified alternative work
experience that would, in fact, meet its specialized experience requirements ,
violated any of the basic requirements of 5 C.F.R. § 300.103 . PFR File, Tab 1
at 4; IAF, Tab 4 at 6-7, 17 -18. Such an argument does not constitute a claim that
the agency “misapplied” otherwise valid OPM requirements and is rather more
accurately characterized as a challenge of the appellant ’s individual qualification
determination, over which the Board does not have jurisdiction. See
Richardson v. Department of Defense , 78 M.S.P.R. 58 , 61 (1998) (finding that an
alleged error in rating and handling an individual’s employment application did
not constitute an employment practice) ; see also Prewitt , 133 F.3d at 887 ( stating
6
that an individual agency action or decision that is not made pursuant to or part of
a rule or practice of some kind does not qualify as an “employment practice”).
Whether by consequence or by design, the agency ’s application of its
qualification standards in a manner that deemed only individuals with previous
experience as Associate Wardens qualified for the Warden position does not
constitute an appealable employment practice s claim. PFR File, Tab 1 at 5.
¶11 Finally, t o the extent the appellant ’s claim that he is being “denied the
opportunity to compete ” for the Warden position is intended as a challenge to the
administrative judge ’s determination that he failed to no nfrivoluosl y allege he
was subject to a negative suitability action , we find that argument is also without
merit. Id. As t he administrative judge correctly noted, the Board does have
jurisdic tion over a “suitability action ,” which includes a cancellation of
eligibility, a removal, a cancellation of reinstatement eligibility, and a debarment .
ID at 7; see Kazan v. Department of Justice , 112 M.S.P.R. 390 , ¶ 6 (2009).
However, a nonselection for a specific position is not a “suitability action,” even
if it is based on the criteria for making suitability determinations set f orth at
5 C.F.R. § 731.202 . Kazan , 112 M.S.P.R. 390 , ¶ 6 ; see 5 C.F.R.
§§ 731.203 (a)-(b), 731.501(a). Beyond finding him unqualified under the listed
announcements, t he appellant does not allege that the agency took any broader
action regarding his eligibility, such as canceling any other eligibilities on othe r
existing competitive register s or barring him from consideration for future
announcements . See Kazan , 112 M.S.P.R. 390, ¶ 6 . As a resu lt, we agree with
the administrative judge ’s determination that the appellant has failed to
nonfrivolously allege that his nonselection was an appealable suitability action .
Id.; 5 C.F.R. § 731.203 (b).
¶12 Accordingly, we deny the petition for review and affirm the initial decision
dismissing the appeal for lack of jurisdiction.
7
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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:
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
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 representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
9
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.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
10
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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.
5 The original statutory provision that provided for judicial review of certain
whistleblower clai ms by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
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 | OBRIEN_JOHN_D_DA_300A_16_0525_I_1_FINAL_ORDER_2014704.pdf | 2023-03-24 | null | DA-300A | NP |
3,359 | https://www.mspb.gov/decisions/nonprecedential/SMITH_DEBORAH_A_SF_0752_21_0229_I_1_FINAL_ORDER_2014741.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBORAH A. SMITH,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -21-0229 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Prato , Esquire , San Diego, California, for the appellant .
Lauren Leathers , Esquire, Falls Church, Virginia, for the agency.
Margie Young , 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 June 3, 2021 initial decision
in this appeal. Initial Appeal File, Tab 23, Initial Decision ; Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
(PFR) File, Tab 1 . For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After th e filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT FOR MSPB APPEAL OF DEBORAH
A. SMITH MSP B DOCKET NUMBER SF -0752 -21-0229 -I-1” signed and dated
by the appellant on February 10, 2023 , and by the agency on February 14, 2023.
PFR File, Tab 6 at 7 . The document provides, among other things, that the
appellant would withdraw her MSPB appeal. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlemen t 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 th e 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, an d intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 6 at 6-7. 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.
3
¶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
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.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within th e court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informatio n regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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 discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
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/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 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:
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 mus t be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)( a), (B), (C), or (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.3 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).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an 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 | SMITH_DEBORAH_A_SF_0752_21_0229_I_1_FINAL_ORDER_2014741.pdf | 2023-03-24 | null | SF-0752 | NP |
3,360 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_CHARMAINE_LORETTA_DC_0752_16_0845_I_1_FINAL_ORDER_2014764.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARMAINE LORETTA
ANDERSON,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER S
DC-0752 -16-0845 -I-1
DC-0752 -16-0738 -W-1
DC-0752 -17-0129 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charmaine Loretta Anderson , Germantown, Maryland, pro se.
Sariana Garcia -Ocasio , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant h as petition ed for review of the initial decisions, which
dismissed these appeals for lack of jurisdiction.3 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 materia l evidence or legal 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 full y considering the filings in the se appeal s, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition s for review. Therefore, we DENY the petition s for review. E xcept as
expressly MODIFIED by this Final Order to VACATE the findings in the
January 12, 2017 initial decision concerning the voluntarin ess of the appellant’s
separation from service , we AFFIRM the initial decision s.
BACKGROUND
¶2 The appellant was a GS -9 Program Analyst with the agency.
Anderson v. Department of Health and Human Services , MSPB Docket
No. DC-0752 -16-0845 -I-1, Initial Appeal File (0845 IAF), Tab 18 at 21.
On January 22, 2014, her supervisor proposed her rem oval based on a charge of
3 Pursuant to 5 C.F.R. § 1201.36 , we GRANT the appellant’s motion and JOIN these
three appeals for adjudication because joinder will expedite processing and will not
prejudice any party. Anderson v. Department of Health and Human Services ,
MSPB Docket No. DC-0752 -17-0129 -I-1, Petition for Review File, Tab 1 at 7. Two of
the appeals previously were joined for adjudication in the Board’s regional office, as
further explained infra ¶ 4.
3
unacceptable conduct. Id. at 34-44. The appellant submitted a written reply and,
on February 25, 2014, the agency’s Acting Deputy Director for the Office for
Human Research Protections issue d a decision to remove her from service,
effective February 28, 2014 . Id. at 22-34.
¶3 On March 5, 2014, the appellant and the agency enter ed into a sett lement
agreement . 0845 IAF, Tab 18 at 15 -20. Under the agreement, t he agency agreed
to convert the appellant’s removal to a resignatio n effective February 27, 2014,
and purge her official personnel f older of documents related to the removal
action. Id. at 17, 21. She agreed that “any potential complaint, grievance, or any
other civil matter stemming from her employment with the Agency and arising
prior to the effectiv e date” of the agreement would be “covered and resolved” by
the agreement. Id. at 15. The appellant also agreed:
[T]o waive, release, and forever discharge the agency, its officers,
agents, employees, and representatives (in their official and/or
persona l capacities) from any claims, demands, or causes of action,
which she has or may have, arising from her employment with the
agency, including all whistleblower claims to the extent permitted by
law.
Id. She affirmed that her resignation under the agreement was voluntary.
Id. at 16. She also certified that she had read the entire agreement and understood
the effect of each provision, including the voluntary resignation and waivers, and
that she had freely entered in to the agreement. Id. at 19. The appellant was
represented by counsel when she entered into the settlement agreement.
E.g., 0845 IAF, Tab 6 at 74.
The appellant’s first two appeals
¶4 On or about April 1, 2016, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency tried to cause her death in
retaliation for alleged whistleblowing. Anderson v. Department of Health
and Human Services , MSPB Docket No. DC-0752 -16-0738-W-1, Initial Appeal
File (0738 IAF), Tab 1 at 4, 8 . The appellant alleged that she had been one of the
4
writers of an anonymous letter to President Barack Obama and various legislators
in February 2013, reporting unfair treatment, managerial fraud, and managerial
theft at the agency. Id. at 8, 10 -21. After OSC closed its investigation into her
complaint, the appellant appealed her allegations of whistleblower reprisal to the
Board. Id. at 3, 5, 8; 0738 IAF, Tab 5 at 6. In her July 17, 2016 appeal, t he
appellant asserted that the agency endangered her life during the period prior to
her resignation by failing to give her a copy of the Federal Occupational Health
(FOH) records that the agency received in connection with her request for a
reasonable acc ommodation based on a disability.4 0738 IAF, Tab 5 at 2, Tab 24
at 1-2. The appellant also claimed that the agency denied her right to due process
because it should have given her notice of her appeal rights when it denied her
request for an accommodation. 0738 IAF, Tab 5 at 2. On August 31, 2016, the
appellant filed another appeal pursuant to the Board’s adverse action jurisdiction
under 5 U.S.C. chapter 75, alleging that she had resigned involuntarily.
0845 IAF, Tab 1. The administrat ive judge joined the appeals on
October 3, 2016. 0845 IAF, Tab 31; 0738 IAF, Tab 25.
¶5 On November 7, 2016, after the p arties had submitted evidence and
argument on the jurisdictional issues, the administrative judge issued an initial
decision that dismisse d the appeals for lack of jurisdiction without holding a
hearing. 0845 IAF, Tab 56, Initial Decision ( 0845 ID) at 1, 7. She found that the
appellant waived her appeal rights concerning her resignation and exhausted
whistleblower reprisal claims in the Ma rch 5, 2014 settlement agreement.
0845 ID at 5-6. She determined that the appellant failed to nonfrivolously allege
any facts that, if proven, could establish that she entered into the agreement
unknowingly or involuntarily. Id. On November 17, 2017, t he appellant filed a
4 The appellant also asserted that the agency coerced her into signing t he settlement
agreement, but the administrative judge found this claim was not properly before the
Board in her whistleblower appeal because she had not first rais ed it with OSC.
0738 IAF, Tab 24 at 2.
5
timely petition for review of that initial decision with the Board .
Anderson v. Department of Health and Human Services , MSPB Docket
Nos. DC-0752 -16-0845 -I-1 and DC -1221 -16-0738 -W-1, Petition for Review
(0845 PFR) File, Tab 2.5
The appellant’s third appeal
¶6 On the same day the appellant filed her petition for review of the initial
decision , she also filed a new a ppeal with the Board’s regional office.
Anderson v. Department of Health and Human Services , MSPB Docket
No. DC-0752 -17-0129-I-1, Initial Appeal File (0129 IAF), Tab 1. In the new
appeal, she sough t review of a November 7, 2016 f inal agency decision (FAD)
issued in connection with her formal complaint of discrimination against the
agency. Id. This appeal was assigned to a d ifferent administrative judge than the
one who had adjudicated her prior two appeals. 0129 IAF, Tab 2. This third
appeal generally concerns events related to her application for retirement
benefits, which occurred after her separation. E.g., 0129 IAF, T ab 3 at 33-34.
She alleged that she was “receiving penalized Regular Retirement [as] oppos[ed]
to ‘Disability Retirement,’ because [her] former Management lied . . . in regards
to [her] Reasonable Accommodations request.” 0129 IAF, Tab 1 at 6.
¶7 The record shows that, in April 2014, the appellant applied to the Office of
Personnel Management (OPM) for disability retirement benefits. 0129 IAF,
5 In April 2021, the appellant filed a request to “ submit updated evidence from the
Social Security Administration, Disability Division, in regards to [her] former an d
present medical condition.” 0845 PFR File, Tab 13 at 4. She states that the Disability
Division “made their assessments by the same physi cian’s prognosis which was
submitted to the Agency when [she] requested] [a] [r]easonable [a]ccommodation.” Id.
Although she does not identify when the assessments were made, she asserts that “the
evidence will prove that [her] medical documentation was deliberately falsified by [her]
former supervisors.” Id. Because we have joined these matters, supra ¶ 1, n.3, we have
considered the appellant’s request and description of the evidence in all three appeals.
However, e ven if we assume for the purposes of our analysis that th e appellant’s
evidence is new, it does not warrant a different outcome on any of the issues discussed
herein. Therefore, we deny her request. 5 C.F.R. § 1201.114 (a)(5), (k).
6
Tab 4 at 7-11. OPM rendered an initial decision on May 17, 2014, denying her
application.6 Id. On or about May 2 9, 2014, she contacted an equal employment
opportunity (EEO) counselor regarding allegations of disability discrimination
and reprisal. 0129 IAF, Tab 7 at 14 -15. After informal counseling failed to
resolve her complaint, she filed a formal complaint of d iscrimination against the
agency on or about June 30, 2014. Id. at 10 -13. The EEO complaint generally
concerned the manner in which her former supervisor completed retirement
paperwork for her in June 2014. Id. She also claimed that, during discovery i n
the EEO proce edings , she received, for the first time, documentation dated
November 2013 that she alleges previously had been withheld by her former
supervisor and was related to her reasonable accommodation request made prior
to her separation . 0129 IAF, Tab 10 at 13 -16, Tab 11 at 34.
¶8 After accepting written briefs on the jurisdictional issue, the administrative
judge issued an initial decision dismissing this third appeal for lack of
jurisdiction. 0129 IAF, Tab 16, Initial Decision ( 0129 ID) at 5.
The administrative judge concluded that, although the appellant had attempted to
characterize the action being appealed as an involuntary retirement, she had failed
to make a nonfrivolous allegation that her retirement pursuant to the settlement
agreement wa s involuntary. 0129 ID at 4 -5. The administrative judge further
found that the FAD addressed discrimination claims concerning actions that were
not otherwise appealable to the Board (i.e., the agency’s role in completing forms
related to her disability retirement application and the denial of her request for
reasonable accommodation). 0129 ID at 6. The administrative judge concluded
that, absent an otherwise appealable action, this was not a “mixed case” and the
Board could not consider her discrimination claims. Id.
6 Although OPM’s initial decision informed the appellant of her right to seek
reconsideration of that decision, s he explained that she elected n ot to pursue a challenge
to OPM’s initial decision because she thought the result would not chang e because of
the retaliatory way her employing agency completed the paperwork. 0129 IAF, Tab 3
at 33-34.
7
¶9 The appellant has filed a petition for re view, the agency has filed an
opposition, and the appellant has filed a reply. Anderson v. Department of Health
and Human Services , Petition for Review ( 0129 PFR) File, Tabs 1, 4 -5.7
ANALYSIS
The appellant ’s separation from service pursuant to the settlem ent agreement is
not an appealable adverse action .
Legal standards applicable to constructive removal actions
¶10 Generally, a Federal employee’s decision to resign or retire is not
considered to be an appealable adverse action under 5 U.S.C. chapter 75.
5 U.S.C. § § 7512, 7513(d). The appellant’ s resignation was a term of the
March 5, 2014 agreement, which also contained a term in which she waived “any
claims, demands, or causes of action . . . arising from her employment.”
0845 IAF, Tab 18 at 1 5-17, 21. To be an appealable adverse action, a separation
by resignation or retirement must have been, in effect, a “removal” action.
See 5 U.S.C. § 7512 ; Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶¶ 7, 11
(2013). The settlement agreement was executed prior to the appellant filing a
Board appeal, and thus it was not entered into the record of any Board appeal for
enforcement purposes. The Board lacks jurisdiction to enforce or invalidate a
settlement agreement not incorporated into the record. Danelishen v. U.S. P ostal
Service , 43 M.S.P.R. 376, 379 -80 (1990). H owever, the Board may examine the
circumstances surrounding the agreement in considerin g whether the appellant’s
separation pursuant to that agreement was tan tamount to an appealable removal
action imposed by the agency. See id. at 380. An appellant meets this burden by
7 After the close of the record on review, the appellant filed a motion for leave to
submit alleged new evidence, specifically, an order regarding her discrimination matter
received on January 11, 2017, one day prior to the issuance of the initial decision in this
appeal. 0129 PFR File, Tab 8. The existing record appears to contain the document to
which the appellant refers, and we find it immaterial to the outcome. 0129 IAF, Tab 14.
To the extent the appellant is referring to a different document, she h as not adequately
explained that it is material to the dispositive jurisdictional issues . Accordingly, we
DENY her motion to submit additional evidence. 5 C.F.R. § 1201.114 (a)(5), (k).
8
showing that s he lacked a meaningful choice because of the agency’s improper
actions. Bean , 120 M.S.P.R. 397 , ¶¶ 8, 11.
¶11 The appellant bears th e burden of establishing jurisdiction over such an
appeal . 5 C.F.R. § 1201.56 (b)(2)(i)(A) . If the appellant makes a nonfr ivolous
allegation of fact relating to jurisdiction, which canno t be resolved simply on the
documentary evidence, she is entitled to a hearing on the jurisdictional issues.
See McCall v. U.S. Postal Service , 839 F.2d 664 , 668 -69 (Fed. Cir. 1988) .
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue. 5 C.F.R. § 1201.4 (s).
The doctrine of adjudicatory efficiency precludes multiple appeals
on the identical issue of whether the appellant’ s separation was, in
effect, an appealable removal action .
¶12 Both initial decisions contain findings that the appellant failed to make a
nonfrivolous allegation that her s eparation from service pursuant to the settleme nt
agreement was, in effect, a removal action appeala ble to the Board.
0845 ID at 5-6 (considering the separation as an alleged involuntary resignation) ;
0129 ID at 3 -5 (considering the separation as an alleg ed involuntary retirement) .
When an appellant files an appeal that raises claims raised in an earlier appeal
after the initial decision in the earlier appeal has been issued, but before the full
Board has acted on the appellant’s petition for review, it i s appropriate to dismiss
the subsequent appeal on the grounds of adjudicatory efficiency. See B ean v.
U.S. Postal Service , 120 M.S.P.R. 447 , ¶ 5 (2013) (explaining that the Board will
dismiss on the basis of adjudicatory efficiency when an identity of issues exists
and the controlling issues in the appeal will be determined in a prior appeal).
To the extent that the appellant raised issues in her third appeal regarding the
voluntariness of her separation from service pursuant to the settlement
agreement,8 we find that the administrative judge should have declined to
8 The appellant may not even have intended to re -raise this issue in her third appeal ,
which followed the FAD on issues raised in her discrimination complaint .
9
consider them anew in the interest of adjudicatory efficiency . Id., ¶¶ 5-6.
We find no basis for considering this issue twice under different labels.9
Accordingly, we vacate the findings in the January 12, 2017 initial decision
regarding the voluntariness of her separation from service because that issue is
being determined in her prior appeal . 0129 ID at 3 -5. We affirm the finding in
the November 7, 2016 initial decision that her separation from service wa s not a
constructive removal action appealable to the Board under 5 U.S.C. chapter 75.
0845 ID at 5-6. We have considered all of the appellant’s argumen ts on this
issue, regardless of the appeal in which she filed them. For the following
reasons, we affirm the administrative judge’s finding that the appellant failed to
make a nonfrivolous allegation that she was subjected to a constructive removal
within the Board’s jurisdiction .
The appellant has failed to make a nonfrivolous allegation that her
agreement to resign was based on agency fraud , concealment, or
misrepresentation .
¶13 The appellan t appears to allege that the agency committed fraud when it
concealed evidence from her prior to her acceptance of the settlement agreement.
0845 PFR File, Tab 2 at 8. A party may challenge the validity of a settlement
agreement if the party believes tha t the agreement is unlawful, involuntary, or the
0129 PFR File, Tab 1 at 8 -9. We find no indication that the appellant ever filed a
formal com plaint of discrimination regarding her separation from service. The record
reflects that he r EEO complaint filed on June 30, 2014, concerned the denial of her
request for accommodation in 2013 and post -separation events regarding the agency’s
alleged unde rmining of her disability retirement application with OPM. 0738 IAF,
Tab 9 at 4-5, 8-9.
9 To be an appealable adverse action, a separation by resignation or retirement must
have been, in effect, a “removal” action. See 5 U.S.C. § 7512 ; Bean , 120 M.S.P.R. 397 ,
¶¶ 7, 11. The appellant is n ot entitled to two Board appeals regarding the same
separation from service merely by labelling one as an alleged involuntary “resignation ”
appeal and the other as an alleged involuntary “retirement ” appeal. Her decision to
apply for retirement benefits more than 1 month after she already had separated from
service is not an independently appealable action and does not affect the dispositive
issue of whether her separation pursuant to the terms of the settlement agreement was,
in effect, an appealable remo val action . See 5 U.S.C. § § 7512 , 7701(j) .
10
result of fraud or mutual mistake. Bahrke v. U.S. Postal Service , 98 M.S.P.R.
513, ¶ 11 (2005 ).
¶14 Many of the a ppellant ’s claims in these appeals are based on information
that she alleges she discovered approximately 2 years after she entered into the
settlement agreement. 0845 PFR File, Tab 2 at 8, 18. In particular, she claims
that her former supervisor improperly concealed from her that, months prior to
entering into the settlement agreement, FOH had found her to be an individual
with a disability for purposes of the Americans with Disabilities Act Amendments
Act of 2008. Id. at 8 -9, 13, 18 -23; 0129 PFR File, Tab 1 at 17-21, 23-27.
She asserts that this concealment led to a chain of events that ultimately ended
with her reluctant acceptance of the settlement agreement. E.g., 0129 PFR File,
Tab 1 at 17-21, 23-27, 32-33, Tab 5 at 8-9, 17. She claims that she only obtained
proof of this concealment of FOH’s determination in late 2015, du ring discovery
for her EEO complaint. 0845 PFR File, Tab 2 at 18. The email messages to
which the appellant refers pertain to FOH’s recommendatio n that the agency
approve 2 weeks of leave under the Family and Medical Leave Act of 1993 during
early 2014, rather than grant the entire accommodation that she requested, which
included full-time telework. 0845 IAF, Tab 6 at 29-34, 60 -72.
¶15 The record reflects, however, that the appellant knew of the existence of
findings from FOH and that she repeatedly sought this information from the
agency in the months preceding her acceptanc e of the settlement agreement.
0738 IAF, Tab 5 at 32 -40; 0845 IAF, Tab 6 at 56 -64. She thus could have refused
to enter into the settlement agreement until the agency provided the information
from FOH. In these circumstances, the appellant, who was represented by
counsel at the time, cannot now claim that this informat ion would have been
material to her decision to enter into the settlement agreement. See Wobschall v.
Department of the Air Force , 43 M.S.P.R. 521 , 524 (finding that the appellant
failed to make a nonfrivolous allegation of an involuntary resignation pursuant to
a settlement agreement based on alleged breach by the agency, because the
11
appellant knew of the agency’s alleged breach befor e he tendered his resignation),
aff’d , 918 F.2d 187 (Fed. Cir. 1990) ; see also Melvin v. U.S. Postal Service ,
86 M.S.P.R. 125 , ¶ 8 (2000) . Accordingly, we find that the appellant has failed to
nonfrivolously allege that the agreement should b e invalidated based on fraud.
Alleged breach of the settlement agreement
¶16 The appellant argues that the agency breached the agreement when her
former supervisor sent derogatory information concerning her past disciplinary
record to OPM in connection with h er retirement application. 0129 IAF, Tab 1
at 61, 63; 0129 PFR File, Tab 1 at 16 -17; 0845 PFR File, Tab 2 at 10. When an
appellant’s resignation or retirement is predicated upon an agreement breached by
the agency or a promise the agency did not intend t o fulfill, the Board may find
the separation from service is involuntary and take jurisdiction over it.
Goodwin v. Department of the Treasury , 52 M.S.P.R. 136 , 141 (1991),
aff’d , 983 F.2d 226 (Fed. Cir. 1992); Carter v. Department of the Navy ,
6 M.S.P.R. 95 , 96-97 n.1 (1981) (finding that the agency’s failure to honor a
clean record settlement agreement, after the appellant resigned in rel iance on that
agreement, render ed his resignation involuntary).
¶17 In the settlement agreement, the agency agreed to expunge all documents
related to the removal action from the appellant’s official personnel folder .
0845 IAF, Tab 18 at 17. There is no me ntion in the agreement of the
expungement of any other prior disciplinary action against the appellant.
Although OPM’s May 19, 2014 letter denying her disability retirement
application references the appellant’s receipt of a May 2013 counseling
memorandum and an August 2013 notice of proposed suspension, it does not
mention the removal action . 0129 IAF, Tab 4 at 22 -27. Indeed , the letter
acknowledges the appellant’s resignation, citing her Standard Form 50 , which
state s—consistent with the terms of the settlement agreement —that she resigned
“to pu rsue other career opportunities. ” Id. at 24; 0845 IAF, Tab 18 at 17.
We find, under these circumstances, that the appellant has failed to
12
nonfrivolously allege that the agency breached the settlement agreement in this
regard.
Alleged duress, coercion, and intolerable working conditi ons
¶18 On review, the appellant renews her arguments that her decision to enter
into the settlement agreement and resign was made under duress and bas ed on
coercive agency actions, which included barring her from certain agency facilities
and withholding notice that it had approved her request for a reasonable
accommodation. 0845 PFR File, Tab 2 at 13-15, 18, 22 -23. To establish that a
settlement agre ement was fraudulent as a result of coercion or duress, a party
must prove that she involuntarily accepted t he other party’ s terms, that
circumstances permitted no alternative, and that such circumstances were the
result of t he other party’s coercive acts. Bahrke , 98 M.S.P.R. 513 , ¶ 11 .
¶19 On review, the appellant cites a March 2014 email message regarding
settlement matters from her attorney representative to an agency official as
documentation of the agency’s allegedly improper actions. 0845 PFR File, Tab 2
at 13 -14. In the email message, her attorney stated that he had “deal t with many
outstanding [F]ederal officials and employees,” but the recipient was “not one of
them,” and that the recipient likely harbored “both retaliatory and discriminatory
animus” toward the appellant. 0845 IAF, Tab 6 at 74. In the message, the
attorney also claimed that the appellant would be signing the settlement
agreement under duress from the agency official and that she would like more
time to negotiate . Id. In the same email message, the appellant’s representative
later indicated that, if th e agency made the change he requested to the language of
the agreement, then the appellant would sign it. Id.
¶20 As the administrative judge explained, the attorney’s negative opinion of
the agency official that was expressed in the process of negotiating th e language
of the settlement agreement does not have the legal effect of converting her
knowing and voluntary agreement to the final terms of the settlement to a
condition of duress . 0845 ID at 6. In addition , we find that his statement that the
13
appellan t was signing under duress is not sufficient to raise a nonfrivolous
allegation that she involuntarily entered the agreement , especially considering
that he made the statement in the course of negotiations and while requesting
changes to the language of th e agreement that ultimately were made .
0845 IAF, Tab 6 at 74, Tab 18 at 17 ; see, e.g. , Soler -Minardo v. Department of
Defense , 92 M.S.P.R. 100, ¶ 5 (2002) (holding that an appellant’ s notation that an
action was accepted under duress fails to establish that an acceptance was
involuntary ); Koczan v. Department of the Army , 42 M.S.P.R. 160 , 165 (1989)
(finding that a settlement agreement signed “under protest” was insufficient to
raise an inference of coercion ); Bravman v. Department of the Navy , 26 M.S.P.R.
169, 171 -72 (1985) ( holding that a retirement was voluntary despite a handwritten
notation on the standard form that it was “involuntary” ).
Mental health conditions and medications
¶21 The appellant states that she was on strong anxiety medica tion during the
negotiation and execution of the settlement agreement . 0845 PFR File, Tab 2
at 9; 0129 PFR File, Tab 1 at 32 -33. She claims that the administrative judge
failed to consider the effects of her prescribed medicatio n and that the
administrative judge’s conclusion that she understood the terms of the agreement
was “not necessarily true if he would have taken the time to review [her] medical
documentation .” 0845 PFR File, Tab 2 at 9; 0129 PFR File, Tab 1 at 32 -33.
¶22 When an appellant has alleged emotional distress as a ground for
involuntariness , the Board considers whether the appellant was represented,
whether she has demonstrated that she was mentally impaired at the time, and
whether she has otherwise shown that she was unable to understand full y the
nature of the action in question or to assist her representative. See Sullivan v.
Department of Veterans Affairs , 79 M.S.P.R. 81 , 85 (1998). The Board also will
review any medical evidence submitted by the appellant to determine whether it is
sufficient to show mental incapacity at the time the agreement was signed.
Clede v. Department of the Air Force , 72 M.S.P.R. 279 , 282 -83 (1996),
14
aff’d , 113 F.3d 1257 (Fed. Cir. 1997) (Table). To be entitled to a jurisdictional
hearing, an appellant needs to do more than make bare assertions of incapacity;
she needs to present sufficient evidence supporting such assertions for the Board
to conclude that a jur isdictional hearing is necessary . Id. at 284.
¶23 Here, the appellant was represented by an attorney during the negotiating
and signing of the settlement agreement. 0845 IAF, Tab 6 at 74. We have
reviewed the medical documentation she referenced on review , as well as the
other documentation submitted through out her appeal, and we find that it does not
suggest that she would have been unable to understand the terms of the agreement
when it was entered into on March 5, 2014. 0845 IAF, Tab 18 at 20;
0738 IAF, Tab 5 at 40-47; 0129 IAF, Tab 3 at 84 -96. For instance, in a letter
from her clinical social worker dated January 31, 2014, approximately 5 weeks
prior to signing the agreement, the social worker stated that the appellant would
be receiving outpatien t treatment for the next 2 to 3 weeks and would be able to
return to work after that time. 0129 IAF, Tab 3 at 89. There is no indication in
that letter of any possible mental impairment upon her return to work .
Further, the appellant has not alleged tha t either she or her attorney informed the
agency that her medical conditions might impair her ability to enter into a binding
legal agreement. Indeed , as the administrative judge noted, the agreement
contains assertions to the contrary regarding her under standing of the agreement.
0129 ID at 5; 0845 IAF, Tab 18 at 19.
¶24 A party to a settlement agreement is presumed to have full legal capacity to
contract unless she is mentally disabled and the mental disability is so severe that
she ca nnot form the necessary intent to enter into the agreement. Swidecki v. U.S.
Postal Service , 101 M.S.P.R. 110 , ¶¶ 18-19 (2006) . We find that the appellant ’s
assertions on review are insufficient to raise a nonfrivolous allegation that the
settlement agreement and her resulting resignation were involuntary because of
her medical condition. See Clede , 72 M.S.P.R. at 286 (explaining that the
15
medical evidence of record did not furnish a nonfrivolous allegation of
jurisdiction entitling the appellant to a hearing based on a claim of incapacity) .
¶25 Accordingly, after thoroughly reviewing her petitions for review, we find
that the appella nt has not set forth any basis to disturb the administrative judges ’
findings that she failed to present a nonfrivolous allegation that her involuntary
resignation is within the Board’s jurisdiction.
The settlement agreement covers her separation as well a s her exhausted
whistleblower claims.
¶26 The appellant appears to argue that her claim of involuntary resignation
falls within the Board’s jurisdiction because it arose “months after” the settlement
agreement was executed. 0129 PFR File, Tab 1 at 12 -13. She bases this assertion
on the fact that she did not obtain the email records relating to her EEO complaint
until late 2015. Id. In that regard, she alleged in her whistleblower reprisal
appeal that the agency made it intolerable for her to stay in her po sition because it
initially did not grant her request for accommodation, it denied her access to
medical documentation from FOH a ssessing her condition and her manager
misled her as to FOH’s recommendation, and it robbed her of her ability to be
rehabilita ted when it denied her requested accommodation. 0738 IAF, Tab 5 at 2,
Tab 24 at 1-2; PFR File, Tab 2 at 10 -13, 17. She asserts that the Board should
hear her claims because she did not waive her rights given the timing of the
agency’s actions . PFR File, Tab 2 at 10 -13; 0845 PFR File, Tab 2 at 8.
¶27 First, the appellant agreed to resign voluntarily pursuant to the agreement
and she has not nonfrivolously alleged that her waiver was involuntary .
0845 IAF, Tab 18 at 15 -16; see Swidecki , 101 M.S.P.R. 110 , ¶ 14. Second, t o the
extent that the appellant is claiming that the Board can assume jurisdiction
because she did not learn until after she signed the agreement that the agency
allegedly mishandled her reasonable accommodation request, we find her
argument unavailing. 0845 PFR File, Tab 2 at 7 -8. The settlement agreement
states that the appellant “agrees that any potential complaint, grievance, or any
16
other civil matter stemming from her employment with the Agency and arising
prior to the effective date” of the agreement was covered under the agreement.
0845 IAF, Tab 18 at 15 (emphasis added). The agency denied th e appellant’s
request for a reasonable accommodation on November 27, 2013, months prior to
the effective date of the agreement, March 5, 2014. 0845 IAF, Tab 6 at 33 -34,
36-37, Tab 18 at 20. We find that any claim concerning her reasonable
accommodation r equest stems from her agency employment and that she waived
her right to contest it when she entered into the settlement agreement .
See, e.g., Muniz v. United States , 972 F.2d 1304 , 1312 -13 (Fed. Cir. 1992)
(holding that a collective bargaining agreement’s grievance procedures
provided the exclusive remedy for a dispute ab out a reti red employee’s claim for
a lump -sum payment, which claim initially arose while he was still employed and
subject to a collective bargaining agreement; disputes concerning such claims
could “only be removed from the grievance and arbitr ation processes by the
explicitly and unambiguously declared intention of the parties”) . We therefore
agree with the administrative judge’s finding that the appellant waived her right
to pursue these claims and that, therefore, they are barred by the sett lement
agreement. 0845 ID at 6.
The Board lacks jurisdiction over the alleged discriminatory actions that were the
subject of the appellant’s EEO proceedings.
¶28 In her third appeal, the appellant alleged that agency officials retaliated
against her by fil ing disability retirement forms , rather than the early retirement
forms she requested , when she applied for retirement after her resignation, and
that her former supervisor asserted that she was not disabled and addressed
disciplinary matters in the agency ’s documentation for her application for
disability retirement. 0129 IAF, Tab 1 at 12 -13, 19 -20, Tab 7 at 11, 23 -26.
We agree with the appellant that the settlement agreement does not preclude her
bringing an appeal regarding such matters , which arose after the execution of the
settlement agreement. However, as the administrative judge properly explained,
17
the agency actions at issue in her EEO complaint are not matters that are
independently appealable to the Board. 0129 ID at 5. Because h er discrimina tion
and retaliation claims are not raised in connection with an otherwise appealable
action , the administrative judge correctly concluded that this is not a “mixed case
appeal .” See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980),
aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982); see also 29 C.F.R. § 1614.302
(defining a “mixed case appeal ” as a Board appeal that alleged that
“an appealable agency action was effected, in whole or in part, because of
discrimination on the bases of race, color, religion, sex, national origin,
disability, age, or genetic information”) (emphasis added).
¶29 We have reviewed the appellant’s remaining arguments and find that none
of them provide s a basis to disturb the administrative judges’ findings that the
appellant has failed to present a nonfrivolous allegation of Board jurisdiction.10
Further, we have reviewed the appellant’s alleged new evidence submitted on
review and have determined that it is either contained in the record below or is
not material to her appeal. 0129 PFR File, Tab 1 at 37 -55; 0845 PFR File, Tab 2
10 For instance, t he appellant argues below and on review that the Board should
consider the factors to assess an appropriate penalty, as set forth in Douglas v. Veterans
Administration , 5 M.S.P.R. 280. 305 -06 (1981), in deci ding her appeal.
0845 IAF, Tab 46; 0129 IAF, Tab 3 at 114-122; 0845 PFR File, Tab 2 at 17.
However , the Board is without jurisdiction to review the merits of the removal action,
including whether the agency properly considered the Douglas factors in reaching its
removal decision. See Burton v. Department of the Air Force , 118 M.S.P.R. 210 , ¶ 16
(2012 ) (finding that the Board lacks the authority to address the merits of the
underlying action when the Board lacks jurisdiction over the appeal). The appellant
further asserts that she was improperly denied “due process” in that the agency failed to
provide her Board appeal rights at the time of her removal and that she signed the
settlement agre ement not knowing that she had any recourse other than resignation.
0845 PFR File, Tab 2 at 8-9. In apparent contradiction, s he also alleges that the agency
did not allow her to resign while the notice of proposed removal was pending. Id. at 9.
The appellant’s claim that she was unaware of her appeal rights is not true, as the
decision notice sets forth her Board appeal rights, 0845 IAF, Tab 6 at 23 -24, and she
offered no evidence supporting her vague assertion that the agency would not allow her
to resign. In any event, all of these matters would have been waived under the
settlement agreement.
18
at 36 -55. Therefore, it provides no basis to disturb the initial decisions. Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to w arrant an outcome different from that of the initial
decision); Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980)
(holding that evidenc e that is already a part of the record is not new).
NOTICE OF APPEAL RIGHTS11
The initial decision s, as supplemented by this Final Order, constitute the
Board’s final decision in these matter s. 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
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.
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 indicate d in the notice, the
Board cannot advise which option is most appropriate in any matter.
19
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circ uit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protec tion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discr imination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of t his decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
20
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 o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www .uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If yo u have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to th e EEOC by regular U.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 to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decem ber 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for th e Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
22
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ANDERSON_CHARMAINE_LORETTA_DC_0752_16_0845_I_1_FINAL_ORDER_2014764.pdf | 2023-03-24 | null | S | NP |
3,361 | https://www.mspb.gov/decisions/nonprecedential/FERGUSON_BRYANT_AND_HAU_SF_4324_17_0411_I_1_FINAL_ORDER_2014787.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FERGUSON, BRYANT, AN D HAU,
Appellant s,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-4324 -17-0411 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian J. Lawler , Esquire, San Diego, California, for the appellant s.
Matthew J. Dowd , Esquire, Washington, D.C., for the appellants.
Allan Robert Thorson , Esquire, Chula Vista, California, for the agency .
BEFORE
Cathy A. Harris , Vice Chairman
Raym ond 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 appellants have filed petition s for review of the initial decision, which
denied their requests for corrective action pursuant to the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA) and motion s to reopen their appeals. For
the reasons set forth below , the appellants’ petition s for review are DISMISSED
as untimely filed without good cause shown, and the motion s to reopen their
appeals are DENIED. 5 C.F.R. §§ 1201.114 (e), (g), 1201.118 .
BACKGROUND
¶2 The appellants, formerly employed as Air Interdiction Agents by the
agency’s Office of Air and Marine, Customs and Border Protection , filed Board
appeals alleging that the agency subjected them to discrimination and harassment
on th e basis of their military service in violation of USERRA. Bryant v.
Department of Homeland Security , MSPB Docket No. SF -4324 -13-0298 -I-1
(Bryant I ), Initial Appeal File (0298 IAF ), Tab 1; Ferguson v. Department of
Homeland Security , MSPB Docket No. SF -4324-13-0299 -I-1, Initial Appeal File ,
Tab 1; Hau v. Department of Homeland Security , MSPB Docket No. SF -4324 -13-
0300 -I-1, Initial Appeal File , Tab 1. The administrative judge consolidated the
appeals and , following a hearing, issued a September 30, 2015 ini tial decision
denying the appellants’ request s for corrective action. 0298 IAF, Tab 18, Tab 31,
Initial Decision ( 0298 ID).3 The administrative judge found that the appellants
did not show that the agency violated USERRA by failing to grant them waivers
from participating in training classes, resulting in the suspension of their
designation to perform law enforcement duties ; subjecting them to a hostile work
3 The administrative judge adopted Bryant I as the lead case below; accordingly, all
citations to the initial appeal file are to Bryant I . 0298 ID at 1 -2. Bryant I contains all
filings and issuances in this matter before the administrative judge , whereas the
secondary case records may contain slig ht differences in content and numbering from
Bryant I .
3
environment; forcing them to surrender their bad ges and weapons during active
military service of 30 days or more; delaying within -grade pay increases; or
requiring them to use annual, sick, or other leave in lieu of military leave.
0298 ID at 2-12. In a footnote, in the initial decision, the administrative judge
noted that althou gh the appellants did not advance a claim of involuntary
discharge in their initial appeals and did not request that it be included as a claim
in the prehearing order, each appellant testified at hearing that he had
involuntarily resigned from the agency, or w as in the process of doing so, due to
hostile working conditions. 0298 ID at 12 n.6. The administrative judge further
stated, “To the extent the appellants seek to pursue such claims as const ructive
removals under 5 U.S.C. § [sic] 75, they may do so by filing separate appeals
with the Board.” Id. The initial decision became final on November 4, 2015,
when neither the appellants nor the agenc y filed a petition for review. 0298 ID
at 13.
¶3 On February 4, 2016, the appellants filed a second set of Bo ard appeals
alleging that the agency subjected them to a hostile work environment such that
they were constructively discharged , in violation of USERRA . Bryant v.
Department of Homeland Security , MSPB Docket No. SF -4324 -16-0267 -I-1,
Initial Appeal File (0267 IAF), Tab 1; Ferguson v. Department of Homeland
Security , MSPB Docket No. SF -4324 -16-0265 -I-1, Initial Appeal File (0265 IAF),
Tab 1; Hau v. Department of Homeland Security , MSPB Docket No. SF-4324 -16-
0268 -I-1 (Hau II ), Initial Appeal File (0268 IAF), Tab 1. On March 2, 2016, the
administrative judge assigned to the second set of appeals dismissed Mr. Hau’s
second appeal as barred by res judicata, 0268 IAF, Tab 10, Initial Decision
(0268 ID), and on April 5, 2016, she dismissed Mr. Bryant ’s and Mr. Ferguson’s
second appeals as barred by collateral estoppel , 0267 IAF, Ta b 15, Initial
Decision (0267 ID) ; 0265 IAF, Tab 15, Initial Decision . Each appellant timely
petitioned the Board for review of the dismissal of his second appeal. Bryant v.
Department of Homeland Security , MSPB Docket No. SF -4324 -16-0267 -I-1,
4
Petition for Review File , Tab 1; Ferguson v. Department of Homeland Security ,
MSPB Docket No. SF -4324 -16-0265 -I-1, Petition for Review File , Tab 1; Hau v.
Department of Homel and Security , MSPB Docket No. SF-4324 -16-0268 -I-1,
Petition for Review File, Tab 1.
¶4 In a September 19, 2016 Opinion and Order, the Board vacated the initial
decision that dismissed Mr. Hau’s appeal as barred by res judicata and instead
dismissed the appeal for lack of jurisdiction as barred by collateral estoppel.
Hau v. Department of Ho meland Security , 123 M.S.P.R. 620 (2016) , aff’d sub
nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017) .
In reaching its decision, the Bo ard overruled precedent permitting an appellant
who did not prevail on the merits in an earlier decision to raise identical issues in
a subsequent appeal and make a nonfrivolous allegation establishing jurisdiction.
Id., ¶ 15. On September 22, 2016, the Board issued nonprecedential final orders
affirming the initial decisions that dismissed Mr. Bryant’s and Mr. Ferg uson’s
second appeals as barred by collateral estoppel and clarifying that the Board
lacked jurisdiction over the appeals . Bryant v. Department of Homeland Security ,
MSPB Docket No. SF -4324 -16-0267 -I-1, Final Order (0267 FO) (Sept. 22, 2016);
Ferguson v. Department of Homeland Security , MSPB Docket No. SF-4324 -16-
0265 -I-1, Final Order (0265 FO) (Sept. 22, 2016). The appellants appealed the
decisions, and in a precedential decision dated December 29, 2017, a panel of the
U.S. Court of Appeals for the Federal Circuit affirmed the Board’s decision in
each appellant’s case. Bryant v. Merit Systems Protection Board , 878 F.3d 1320
(Fed. Cir. 2017).
¶5 On May 3, 2017, the appellants filed petition s for review of the initial
decision in Bryant I and motions to reopen their first set of appeals . Ferguson,
Bryant, and Hau v. Department of Homeland Security , MSPB Docket No.
5
SF-4324 -17-0411 -I-1, Consolidation Petition for Review (CPFR) File , Tab 1 .4
The Clerk of the Board informed the appellants that their petition s for review
were untimely because they were not filed on or before November 4, 2015, and
that the Board’s regulations require an untimely filed petition to be accompanied
by a motion to accept the petition as timely filed and/or to waive the filing time
limit for good cause and an affidavit or sworn st atement setting forth good cause
for the delay in filing. CPFR File , Tab 2. The appellants filed a motion to waive
the deadline for filing the petition s for good cause and referred to their motion s to
reopen the appeals as setting forth the reasons for t he late filing. CPFR File, Tab
4. The agency has opposed the petition s for review and motion s to reopen, as
well as the motion to waive the deadline for filing the petition s. CPFR File, Tabs
3, 5.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellants have not shown good cause to waive the deadline for filing a
petition for review.
¶6 The Board treats a request to reopen an initial decision that became final
when neith er party petitioned for review as an untimely filed petition for review.
Shannon v. Departmen t of Veterans Affairs , 110 M.S.P.R. 365 , ¶ 5 (2009).
Therefore, we will initially treat the appellants’ submission s as an untimely filed
petition for review.
¶7 A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if a party shows that he received the
initial decision more than 5 days after it was i ssued, within 30 days after his
receipt of the initial decision. 5 C.F.R. § 1201.114 (e). The Board will waive this
time limit only upon a showing of good cause for the delay in filing. 5 C.F.R.
4 Upon receipt of the petitions for review, which were electronically filed separately
under each appellant’s docket number but are identical in content, the Clerk of the
Board assigned a consolidat ion lead docket number and placed one petition for review
in the consolidation petition for review file. CPFR File, Tab 1. All other filings on
petition for review are also located in the consolidation petition for review file.
6
§§ 1201.12 , 1201.114(g). To establish good cause for the untimely filing of a
petition, a party must show that he exercised due diligence or ordinary prudence
under the partic ular circumstances of the case. Shannon , 110 M.S.P.R. 365 , ¶ 6.
To determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse a nd his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existe nce of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely file his petition.
Id.
¶8 The appellants filed t he petition s for review and motion s to reopen on
May 3, 2017, nineteen months after the September 30, 2015 initial decision was
issued in this matter. 0298 ID. The appellants have not alleged that they
received the initial decision more than 5 days after the date of its issuance.
Rather, the appellants argue that extraordinary circumstances warrant review of
the initial decision ; namely that : (1) they detrimentally relied upon the
administrative judge’s failure to rule on their constructive discharge cl aims and
instruction to refile those claims in a separate action ; and (2) the Board’s decision
in Hau II changed the Board’s law in its application of issue preclusion to the
appellants’ second set of USERRA appeals . CPFR , Tab 1 at 7 -10.
¶9 Regardless of w hether these circumstances show good cause for the
untimely filed petitions , the appellants have failed to show that they exercised
due diligence in petitioning the Board for review. The Board’s decisions
dismissing the appellants’ second set of appeals f or lack of jurisdiction , which
rejected the ir argument that collateral estoppel should not bar their involuntary
resignation claims, were issued on September 1 9 and 22, 2016 . Hau,
123 M.S.P.R. 620 , ¶¶ 7, 13, 16 ; 0267 FO , ¶¶ 7, 12 -13; 0265 FO , ¶¶ 7, 12 -13. The
appellants , who have been represented by counsel throug hout both sets of
appeals , offer no explanation for the 7-month delay in filing the petitions for
7
review following the issuance of the dismissals on petition for review of their
second appeals .5 A delay of 7 months is significant. See, e.g. , Summerset v.
Department of the Navy , 100 M.S.P.R. 292 , ¶ 7 (2005) (stating that a filing delay
of 33 days is significant) ; Greenberg v. Department of Justice , 91 M.S.P.R. 42 ,
¶ 6 (2002) (stating that a filing delay of over 6 months is significant) . The
appella nts’ fa ilure to exercise due diligence does not warrant waiving the filing
deadline. See Triplett v. Office of Personnel Management , 105 M.S.P.R. 575 , ¶ 7
(finding that the appellant failed to exercise due diligence when she waited over
6 months to seek review after le arning of the initial decision) , aff’d , 250 F. App’x
322 (Fed. Cir. 2007) .
¶10 Moreover, the appellants have not presented circumstances beyond their
control that prevented them from promptly requesting review of the initial
decision . The administrative judge’s notification to the ap pellants that they could
file separate appeals regarding their involuntary resignati on claims did not direct
the appellants to abandon their appeal rights with respect to the instant matter ,
and the initial decision informed the m that the decision would become final on
November 4, 2015, unless a party filed a petition for review , and prov ided
instructions to file a petition for review . 0298 ID at 12 n.6 , 13-14; see also
Bryant , 878 F.3d at 1327 (finding that the administrative judge in Bryant I did not
direct or order the appellants to abandon Board review). The appellants’ failure
to re quest review of the instant initial decision while pursuing a second appeal
does not constitute good cause to waive the time limit. See Bryant , 878 F.3d
at 1327 (explaining that the appellants’ assumption that they could proceed anew
with a second set of identical USERRA appeals was not reasonable ); cf. Shannon ,
5 Arguably, the appellants knew or should have known of the alleged fallacies of the
administrative judge’s rulings in Bryant I and the possibility that their involuntary
resignations claims were barred by collateral estoppel upon receipt of the initial
decisions in the second set of appeals rejecting the appellant s’ arguments in support of
advancing the appeals, issued nearly 13 months before the appellants filed the instant
petitions for review. See, e.g. , 0267 ID, 0268 ID.
8
110 M.S.P.R. 365 , ¶ 8 (stating that the withdrawal of an a ppeal to pursue the
claims in another forum does not establish good cause for an untim ely filed
petition for review).
¶11 Similarly, the appellants have presented no evidence that the Board’s
decision in Hau II prevented the appellants from filing a petition for review of the
earlier initial decision in Bryant I . CPFR File , Tab 1 at 8 -9; see also Bryant , 878
F.3d at 1327 (observing that seeking review of the initial decision in Bryant I was
available to the appellants under the Board’s past precedent regarding collateral
estoppel) . Thus, we find that the appellants have not shown good cause for
untimely filing their petitions for review . See Jackson v. Department of Defense ,
107 M.S.P.R. 317 , ¶¶ 14-20 (2007) ( dismissing the appellant’s petition for review
as untimely filed because, despite learning of misinform ation from the
administrative judge, she failed to timely challenge the dism issal of her initial
appeal or show good cause for the untimely filing) , aff’d , 287 F. App’x 856 (Fed.
Cir. 2008).
The appellants have not shown that unusual or extraordinary circu mstances exist
that warrant reopening their appeals.
¶12 Further, we find no basis to reopen the appeal s pursuant to 5 C.F.R.
§ 1201.118 . In deciding whether to reopen a closed appeal, the Board will
balance the desirability of finality against the public interest in reaching the
correct result. Jennings v. Social Security Administration , 123 M.S.P.R. 577 ,
¶ 17 (2016) . Thus, the Board will exercise its discretion to reopen an appeal only
in unusual or extraordinary circumstances, such as an intervening event t hat
directly bears on the result or the discovery of misrepresentation or fraud after the
issuance of the initial decision, and generally within a short period of time after
the decision becomes final. Id.; 5 C.F.R. § 1201.118 . Such a short period of time
is usually measured in weeks, not years. Jennings , 123 M.S.P.R. 577 , ¶ 17.
¶13 Here, the initial decision be came final on November 4, 2015 , thus the
appellants’ request s to reopen were filed far beyond the short period of time
9
during which the Board will consider reopening an appeal . 0298 ID at 13; see
Special Counsel v. Gr einer , 119 M.S.P.R. 492 , 496 (2013) (stating that, even
though the appellant requested reopening 2 months after the effective date of a
new law applicable to his case, the 15 -month time period that elapsed between the
Board’s decision and the date of his reconsideration request was longer than the
Board generally accepts). In addition, the circumstance s the appellants cite do
not constitute unusual or extraordinary circ umstances that warrant reopening the
appeals. For the reasons set forth above, the appellants’ failure to pursue a
petition for review in this matter based on their pursuit of a second a ppeal does
not constitute the type of intervening event or fraud that would warrant reopening
the appeals.
¶14 Additionally, the Board’s change in its precedent regarding collateral
estoppel does not warrant reopening the appeals . Reopening an appeal may b e
appropriate when there is a clear and material legal error generally confined to a
conflict between the holding of the decision and a controlling precedent or
statute, either because of an oversight or a change in the controlling law between
the date of the original decision and any reopening request. Jennings ,
123 M.S.P.R. 577 , ¶ 19 . Here, although in Hau II the Board cha nged its
application of collateral estoppel , the change in its law was not one that would
have changed the outcome of the instant matter. See Bryant , 878 F.3d at 1327
(explaining that the appellants would have been precluded from relitigating
identical issues under the Board’s precedent before or after the change in law, in
concluding that the change -of-law exception to collateral estoppel was not
applicable to the appellants’ appeals ). In addition, the appellants do not set forth
arguments showing that the administrative judge’s findings regarding their claims
of discrimination and haras sment were clearly erroneous. CPFR File , Tab 1 at
10-20. Accordingly, we find that the appellants have not established g rounds to
reopen their appeals.
10
¶15 Therefore, we d ismiss the petition s for review as untimely filed, and we
deny the appellants ’ request s to reopen their appeal s. This is the final decision of
the Merit Systems Protection Board regarding the timeliness of the petition s for
review. The initial decision r emains the final decision of the Board regarding the
appellants ’ first set of USERRA appeals .
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
6 Since the issuance of the i nitial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
12
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no ch allenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 fi le petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
Contact information for the courts of appeals can be 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 | FERGUSON_BRYANT_AND_HAU_SF_4324_17_0411_I_1_FINAL_ORDER_2014787.pdf | 2023-03-24 | null | SF-4324 | NP |
3,362 | https://www.mspb.gov/decisions/nonprecedential/BIERLEY_BOBBY_E_SF_0752_16_0773_I_1_FINAL_ORDER_2014794.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BOBBY E. BIERLEY, SR .,
Appellant,
v.
DEPARTMENT OF ENERGY ,
Agency.
DOCKET NUMBER
SF-0752 -16-0773 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bobby E. Bierley, Sr ., Mead, Washington, pro se.
Sarah T. Hawkins , Portland, Oregon, 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 appeal of a removal action as untimely filed without good cause
shown. 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 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
circumstances: 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
cons idering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Boa rd’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In a memorandum dated April 29, 2016, the agency informed the appellant
of its propos al to remov e him from the position of Electrician with its Bonneville
Power Administration , no less than 30 days from the date of his receipt of that
proposal, based on the charges of drug use and failure to follow instructions .
Initial Appeal File (IAF), Tab 5, Subtab 4i at 1-2. The appellant, through
counsel , replied. IAF, Tab 4, Subtabs 4d -4g. In a memorandum dated August 11,
2016, the agency set forth its decision to remove him effective August 12, 2016 ,
and provided notice of his right to file a Board appeal within 30 calendar days
after the receipt of the removal decision. IAF, Tab 1 at 7-8.
¶3 On September 14, 2016, t he appellant electronically filed an appeal with the
Board’s Western Regional Office . IAF, Tab 1 at 1, Tab 6 at 2. He set forth
August 15, 2016, as the date of his receipt of the agency’s decision . IAF, Tab 1
at 3. He also requested a hearing. Id. at 2. Upon the regional office ’s
September 14, 2016 email request that the appellant provide copies of
3
attachments that were not submitted online re garding his appeal, the app ellant
provided a copy of the August 11, 2016 removal decision by facsimile on
September 16, 2016 . Id. at 6-14.
¶4 The agency responded to the appeal, assert ing that the appellant had
received the removal decision by email on August 12, 2016, and that the appeal
was untimely because it should have been filed no later than September 12, 2016 .
IAF, Tab 4 at 10 , Subtab 4b at 4. The agency provided a copy of an email dated
August 12, 2016, from the appellant acknowledging receipt of the decision and
forwarding it to his attorney of record. Id., Subtab 4b at 4.
¶5 In an order on timeliness , the administrative judge noted that the appellant’s
appeal appeared to have been filed 2 days late . IAF, Tab 6 at 2. He further
informed the appellant of his burden on timeliness and directed him to submit
evidence and/or argument demonstrating that he timely filed his appeal or that
there was good cause for the filing delay. Id. at 2-3. The appellant filed a
document , which did not explain why his appeal was filed late. IAF, Tab 7. He
provided instead a narrative regarding the removal, his work history, an Office of
Workers’ Compensation Programs (OWCP) claim, and the penalt y determination.
Id. He submitted variou s medical records and statements bearing dates within the
range of either years or months prior to his removal . Id.
¶6 Without holding the requested hearing, the administrative judge issued an
initial decision, finding th at the appeal was untimely and that good cause for the
filing delay had not been shown . IAF, Tab 9, Initial Decision (ID) at 1, 5. The
administrative judge found that, notwithstanding the appellant’s allegation that he
received the decision on August 15, 2016 , the record reflect s that he was in
receipt of the decision notice on August 12, 2016, the date that he responded to
the agency regarding the email. ID at 4. She noted that the decision informed
him of the filing time limit but that the appellant provided no explanation for his
untimely filing. ID at 4-5. Thus, s he found that he had not identified any
circumstances beyond his control that affected his ability to timely file his appeal ,
4
nor had he shown he exercised due diligence or ordinary prudence under the
particular circumstanc es of the case. ID at 5.
¶7 The appellant has filed a timely petition for review, and the agency has filed
an opposition to the petition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 Generally, an appellant must file an appeal with the Board no later than
30 calendar days after the effective date of the contested action or 30 calendar
days after the date of the appellant’s receipt of the agency’s decision, whichever
is later . 5 C.F.R. § 1201.22 (b)(1). An appeal that is not filed within the
applicable time limit will be dismissed as untimely unless the appellant shows
good cause for the delay . 5 C.F.R. § 1201.22 (c). T o 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 considers the length of the delay, the reasonableness of his
excuse and h is showing of due d iligence, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond h is
control that affected h is ability to comply with the time limits or of unavoidable
casualty or misfortune that similarly shows a c ausal relationship to h is inability to
timely file h is appeal . Moorman v. Department of the Army , 68 M.S.P.R. 60 ,
62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). The appellant has the
burden of proof on the issue of timeliness, which he must establish by
preponderant evidence. 5 C.F.R. § 1201. 56(b)(2)(i)(B) .
¶9 On review, the appellant appear s to challenge the administrative judge’s
finding that the filing date for his appeal was September 12, 2016, based on his
receipt of the notice of decision on August 12, 2016. PFR File, Tab 1 at 1; ID
at 4. For th e first time on review , the appellant asserts the following: “The Email
dated Aug. 11 2016 , I didn’t receive until 4 to 5 weeks later due to 2 factors.”
5
PFR File, Tab 1 at 1. Without specifically identifying the two factors , which
allegedly precluded his receipt of the decision notice, he states that he was
attacked and injured in his home by someone whom he thought was his friend.
Id. He alleges that he sustained a life-threatening injur y. Id. He submit s,
however, an incident r eport by the Spokane Police/Spokane County Sheriff, dated
August 11, 2016, regarding a simple assault and an emergency room report signed
on August 14, 2016 . PFR File, Tab 1 at 4 -5. Both documents predate the
October 24, 2016 close of record on timeliness . IAF, Tab 6 at 4. He asserts that
he lost access to both his home and his computer until October 25, 2016, when his
lawyer went to his home and got his laptop. PFR File , Tab 1 at 1. The Board
generally will not consider an argument raised for the first t ime on review absent
a showing that it is based on new and material evidence not previously available
despite the party ’s due diligence. Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 (1980). The appellant has not explained why he could not
have raised these arguments in response to the administrative judge’s timeliness
order, and we will not consider them for the first time on review. Furthermore,
the argument of a delayed receipt of the decision notice is undercut by the
appellant ’s filing a copy of the August 11, 2016 decision notice with the regional
office on September 16, 2016 , IAF, Tab 1 at 7, and his acknowledgment on his
appeal form of his receipt of the August 11, 2016 decision in August 2016 , id.
at 3. The appellant has not refuted the email submitted by the agency showing
that he received an electronic copy of the decision letter and forwa rded it to his
counsel. IAF, Tab 4, Subtab 4b at 4.
¶10 The appellant also asserts that he did not receive the Standard Form 50
documenting his removal until November 2016 and submits narrati ves regarding
personal matters , a grievance, and an OWCP claim . PFR File, Tab 1 at 1 -43. He
offers no explanation , argument , or evidence as to how any of th ese matters
relate s to the issue of timeliness of his appeal . Id. Thus, he has provided no
basis for disturbing the initial decision.
6
¶11 Based on the foregoing ana lysis, we affirm the initial decision dismissing
the 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 de termines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wis h to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your cas e by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, w hich must be 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.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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 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
8
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 an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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
4 The original statutory provision that provided for judic ial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for ju dicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BIERLEY_BOBBY_E_SF_0752_16_0773_I_1_FINAL_ORDER_2014794.pdf | 2023-03-24 | null | SF-0752 | NP |
3,363 | https://www.mspb.gov/decisions/nonprecedential/LEONARD_RASHEEDAH_CH_0714_21_0249_I_1_FINAL_ORDER_2014850.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RASHEEDAH LEONARD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0714 -21-0249 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Torchia , Esquire, Cincinnati, Ohio, for the appellant.
Kimberly Huhta , Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. For the reasons discussed below, we DISMISS the appeal
as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 On February 27, 2023, w hile the petition for review was pending, the
appellant submitted a copy of a settlement agreement, signed and dated by the
appellant on Febr uary 20, 2023, and by the agency on February 23, 2023.
Petition for Review File, Tab 5 at 5 -9. The settlement agreement provides for the
withdrawal of the appeal in exchange for certain promises made by the agency,
and the parties have further agreed for the agre ement to be entered into the record
for enforcement purposes. Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See 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 the settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. We further find that the agreement is lawful on its
face a nd that the parties freely entered into it. Accordingly, we find it
appropriate to dismiss the appeal “with prejudice to refiling ” (i.e., the parties
normally may not refile this appeal) and enter the 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 the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals 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
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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:
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 protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEONARD_RASHEEDAH_CH_0714_21_0249_I_1_FINAL_ORDER_2014850.pdf | 2023-03-24 | null | CH-0714 | NP |
3,364 | https://www.mspb.gov/decisions/nonprecedential/HARRISON_DERRICK_AT_0714_21_0290_I_1_FINAL_ORDER_2014898.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DERRICK HARRISON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -21-0290 -I-1
DATE: March 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Esquire, Mt. Pleasant, South Carolina, for the
appellant.
Karen Mulcahy , Esquire, Bay Pines, Florida, for the agency.
Luis E. Ortiz -Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal ,
and the agency has filed a cross petition for review . Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tabs 1, 3. For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the fili ng of the appellant’s petition for review and the agency’s cross
petition for review , the parties signed a document entitled “SETTLEMENT
AGREEMENT ,” on March 6 and 7, 20 23. PFR File, Tab 11. The document
provides, among other things, for the withdrawal of the above -captioned appeal.2
Id. at 4.
¶3 Before dismissing an appeal as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entere d into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before ac cepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 1 0-11 (2017).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the a greement to be entered into the record
for enforcement by the Board. PFR File, Tab 11 at 4 -8. Accordingly, we find
that dismissing the appeal with prejudice to refiling (i.e., the parties normally
may not refile this appeal) is appropriate under these ci rcumstances. In addition,
we find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
2 In addition to providing for the withdrawal of the appeal, the settlement agreement
also prov ides for the withdrawal of the agency’s cross petition for review. PFR File,
Tab 11 at 5. The appellant also had a compliance matter before the Board in
conjunction with his underlying appeal. Harrison v. Department of Veterans Affairs ,
MSPB Docket No. AT-0714 -21-0290 -C-1. However, the parties’ settlement agreement
does not reference that matter, and the Board issued a separate Final Order in that
matter on September 7, 2022 .
3
¶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 f ully 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 spec ific 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 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.
3 Since the issuance of the initial decision in this matter, the Board may h ave updated
the notice 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
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 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 befo re
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision bef ore you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to 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 Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whis tleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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
whistl eblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisi ons in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 S tat. 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 t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.ca fc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board nei ther 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 | HARRISON_DERRICK_AT_0714_21_0290_I_1_FINAL_ORDER_2014898.pdf | 2023-03-24 | null | AT-0714 | NP |
3,365 | https://www.mspb.gov/decisions/nonprecedential/BASIL_TONEISHA_M_DC_1221_21_0633_W_1_FINAL_ORDER_2014273.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONEISHA M. BASIL,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency .
DOCKET NUMBER
DC-1221 -21-0633 -W-1
DATE: March 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Toneisha M. Basil , Washington, D.C., pro se .
Jacob Smith , 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 f iled a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 ar gument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.11 5). After fully
considering the 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 MODIFIE D
regarding the basis for concluding the Board lacks jurisdiction over the appeal ,
we AFFIRM the in itial decision.
BACKGROUND
¶2 The appellant is employed as a GS -9 Government Information Specialist
with the agency ’s Security Programs and Information Manage ment Branch
within its Marine Corps’ Freedom of Information Act (FOIA) and Privacy
Programs . Initial Appeal F ile (IAF), Tab 4 at 94. According to the appellant, in
September and October 2020, she questi oned her first -level supervisor, who was
the Freedom of Information Act/Privacy Act (FOIA/PA) Programs Manager, as
well as other agency officials, about whether FOIA exemptions were being
misapplied. Id. at 5-11, 22, 27 -28, 97-104. Around October 2020, the appellant
also allegedly disclosed that her first-level supervisor was harassing her and
acting dismissive ly toward her. Id. at 95, 105-09, 213; Petition for Review
(PFR) File, Tab 1 at 26.3 Lastly, she allegedly disclosed that “improprieties were
3 On review, the appellant submits a copy of the preliminary determination letter from
the Office of Special Counsel (OSC) that was not part of the record below. PFR File,
3
occurring regarding lunch breaks and related break policy interpretations. ” PFR
File, Tab 1 at 26.
¶3 According to the appellant, a s a result of these disclosures, she was
subjected to re taliation, including an October 20, 2020 letter of caution, a n
October 2020 security investigation, a November 23, 2020 letter of reprimand, a
January 2021 revocation of her swipe access to enter her work space, and a
hostile wor k environment. IAF, Tab 4 at 11, 15, 19 -20, 52, 94 -96, 149 -51,
198-203; PFR File, Tab 1 at 26-27.
¶4 The appellant filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC). IAF, Tab 4 at 249. OSC issued her a final determination
letter in July 2021, closing out its investigation into her complaint. Id. at 249-50.
The appellant , acting pro se, filed this IRA appeal with the Board. IAF, Tab 1
at 1, 4. The administrative judge issued an order setting forth the appellant’s
burden to establish jurisdiction over her IRA appeal , to which the appellant
responded . IAF, Tab 3, Tab 4 at 4-24.
¶5 Following the appellant’s jurisdictional response, t he administrative judge
issued an initial decision, dismissing the appeal for l ack of jurisdiction. IAF,
Tab 5, Initial Deci sion (ID) at 1, 10 . She did not make findings regarding the
appellan t’s alleged disclosures. ID at 7 n.2, 10 n.3. Instead, she found that the
Board lacks jurisdiction over the alleged personnel actions. She determined that
the appellant exhausted her administrative remedies before OSC concerning the
letter of caution, security investigation, and letter of reprimand . ID at 6-7. She
also implicitly found that the appellant exhausted her OSC remedy regarding an
Tab 1 at 26-28. Generally, the Board will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980). Even though this document was available before the close
of record, the issue of jurisdiction is always before the Board and may be raised at any
time. Stoglin v. Department of the Air Force , 123 M.S.P.R. 163 , ¶ 7 (2015), aff’d per
curiam , 640 F. App’x 864 (Fed. Cir. 2016) . Thus, we will consider the OSC letter here
to the extent it impacts the Board’s jurisdiction over t his appeal.
4
alleged hostile work environment. ID at 7 & n.2. However, she found that the
letter of cau tion and security inquiry did not amount to personnel actions over
which the Board could exercise IRA jurisdiction. ID at 8-10. She also concluded
that the Board lacks jurisdiction o ver the appellant’s letter of reprimand because
she elected to file a gr ievance before filing an IRA appeal. ID at 7-8, 10. As to
the alleged hostile work environment, the administrative judge reasoned that the
appellant’ s allegations were too conclusory, vague, or unsupported to amount to a
nonfrivolous allegation of a pers onnel action . ID at 7 n.2.
¶6 The appellant has filed a petition for review of the initial decision. PFR
File, Tab 1.4 The agency has responded to the appell ant’s petition. PFR File,
Tab 3. The appellant has replied to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302 (b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302 (b)(9)(A)(i), (B), ( C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish the matter at issue. 5 C.F.R.
§ 1201.4 (s). The U.S. Court of Appeals for the Federal Circuit has found that, in
4 On review, the appellant also resubmitted documentation that was already part of the
record below. E.g., compare IAF, Tab 4 at 249-50, with PFR File, Tab 1 at 29-30;
compare IAF, Tab 3, with PFR File, Tab 1 at 31-39. Evidence that is already part of the
record is not new evidence that warrants granting review. Meier v. Department of the
Interior , 3 M.S.P.R. 247 , 256 (1980); see 5 C.F.R. § 1201.115 (d) (identifying new and
material evidence as a basis on which the Board may, in appropriate circumstances,
grant review). In any event, we have considered all of the evidence in the record that
relates to the Board’s jurisdiction, regardless of when it was submitted. See Stoglin ,
123 M.S.P.R. 163 , ¶ 7.
5
the context of an IRA appeal, a nonfrivolous allegation is an a llegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1364, 1369
(Fed. Cir. 2020).
¶8 The parties do not dispute the administrative judge’s findings regarding
exhaustion , and we discern no basis to disturb them here.5 ID at 6-7 & n.2; IAF,
Tab 4 at 249-50. We agree with the administrative judge’s conclusion that the
appellant failed to esta blish Board jurisdiction . However, we disagree with her
finding that the appellant ’s administrative grievance of her letter of reprimand
divested the Board of jurisdiction over that person nel action . Instead, as
discussed below, we conclude that the Board lacks jurisdiction over the instant
appeal because the appellant failed to nonfrivolously a llege that she made a
protected disclosure.
The administrative judge erred in finding the app ellant failed to nonfrivolously
alleg e that she suffered a personnel action.
¶9 Although not directly addressed by the administrative judge, w e find that
the appellant nonfrivolously alleged that her letter of reprimand is a personnel
action. IAF, Tab 4 at 149-51; see Horton v. Department of Veterans Affairs ,
106 M.S.P.R. 234, ¶ 18 (2007) (stating that a letter of r eprimand is a personnel
action). The appellant’s supervisor indicated that the letter was considered “a
first offense should subsequent discipline need to be imposed” and it would
remain in the appellant’s Official Personnel File for 2 years.6 IAF, Tab 4
at 150-51. The administrative judge determined that the Board lacks jurisdiction
over the reprimand because the appellant elected to grieve it. ID at 7-8. The
appellant disagrees, arguing that her grievance was not filed pursuant to a
5 To the extent the appellant argues on review that the administrative judge imp roperly
found she failed to exhaust her OSC remedy, she is mistaken. PFR File, Tab 1 at 4-6.
6 The 2 -year period was later reduced to 6 months during the administrative grievance
process. IAF, Tab 4 at 204-06.
6
negotiated grievance process an d, therefore, it did not preclude Board
jurisdiction . PFR File, Tab 1 at 6-7. We agree with the appellant .
¶10 Under 5 U.S.C. § 7121 (g), an individual who is covered by a collective
bargaining agreement and who believes that she has suffered reprisal for making
protected disclosures may elect not more than one of the following three
remedies: (1) a direct appeal to the Board under 5 U.S.C. § 7701 ; (2) a grievance
filed pursuant to the provisions of the negotia ted grievance procedure; or (3) the
procedures for seeking corrective action from OSC followed by an IRA appeal .
Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 12 (2015) ;
Shannon v. Department of Homeland Security , 100 M.S.P.R. 629, ¶ 15 (2005) .
Whichever remedy is sought first is deemed an election of that procedure and
precludes pursuing the matter in either of the other two fora. Sherman ,
122 M.S.P.R. 644, ¶ 12.
¶11 In the instant appeal, t he appellant sought to “chall enge the OSC’s
determ ination dated . . . July 31, 2021.” IAF, Tab 1 at 4. Thus, she did not file a
direct appeal with the Board. In any event, she has not alleged she suffered an
appealable action that might be the su bject of a Board appeal under 5 U.S.C.
§ 7701 . Thus, even if she had filed a direct appeal, it would not be a binding
election to pursue that option. See Shannon , 100 M.S.P.R. 629, ¶ 17 (determining
that if an appellant elects to directly appeal a matter to the Board over which it
does not have appellate jurisdiction, such an appeal is not a binding election of
remedy). The remaining election options are filing either a grievance or an OS C
complaint followed by a Board appeal .
¶12 Here, the appellant filed an administrative grievance over her letter of
reprimand , which was governed by Civilian Marine Corps Order 12771.3 ,
Civilian Marine Administrative Grievance System (MCO 12771.3) (Mar. 28,
7
2013) .7 IAF, Tab 4 at 149-51, 204 . This internal grievance process does not
cover matters that can be raised through a negotiated grievance procedure .
MCO 12771.3 at 2. There is also no indication in the record that the appellant is
covered by a c ollective bargaining agreement. Thus, by filing the administrative
grievance , the appellant did not elect a remedy pursuant to 5 U.S.C. § 7121 (g)
that would preclude Board jurisdiction over this appeal. See Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 3 n.1 (2011) (finding that
the fact that the appellant filed grievances of personnel actions did not preclude
Board IRA jurisdiction over those actions when the grievances were not filed
pursuant to a collective bargaining agreement) ; Garrison v. Department of
Defense , 101 M.S.P.R. 229, ¶ 16 (2006) (same) . Thus, we disagree with the
administrative judge that the appellant’s grievance divests the Board of
jurisdiction over the letter of reprimand. The appellant met her jurisdictio nal
burden as to this personnel action .
¶13 The appellant has also raised challenges to the administrative judge’ s
findings that the appellant failed to nonfrivolously allege that she suffered
personnel actions when she received a letter of caution and was subjected to an
investigation . PFR File, Tab 1 at 9-20; ID at 7 n.2, 8-10. Further, she appears to
re-raise her claim that her first -level supervisor harassed her in retaliation for her
disclosures. PFR File, Tab 1 at 10, 18 -19. In cases involving multiple alleged
protected disclosures and multiple alleged per sonnel actions, w hen the appellant
makes a nonfrivolous allegation that at least one alleged personnel action was
taken in retaliation for at least one alleged protected disclosure, she establishes
7 Although the parties did not provide a copy of MCO 12771.3, we take
administrative notice of its contents, which are available online at
https://www.marines.mil/Portals/1/Publications/MCO%2012771.3.pdf . 5 C.F.R.
§ 1201.64 (providing that an administrative judge may take official notice of matters of
common knowledge or matters that can be verified ); see Hessami , 979 F.3d at 1369 n.5
(acknowledgin g that at the jurisdictional stage in an IRA appeal, the Board may
consider matters subject to judicial notice) (citation omitted).
8
the Board’s jurisdiction over her IRA appeal. Horton , 106 M.S.P.R. 234, ¶ 14.
Therefore, we find it unnecessary to address these other alleged personnel
actions . Instead, as discussed be low, we find that the Board lacks jurisdiction
because the appellant failed to nonfrivolously allege that she made a
protected disclosure .
The appellant failed to nonfrivolously allege that she made a protec ted disclosure
regarding possible misapplication of FOIA exemptions .
¶14 Because the administrative judge determined that the appellant did not
suffer a personnel action, she did not analyze whether the appellant made
nonfrivolous allegations of a protected disclosure. ID at 10 n.3. T heref ore, we
address this issue here.
¶15 A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regu lation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specifi c danger to
public health or safety. 5 U.S.C. § 2302 (b)(8); Mudd v. Department of Veterans
Affairs , 120 M.S.P.R. 365, ¶ 5 & n.3 (2013) . The proper test for determining
whether an employee had a reasonable belief that her disclosures we re protected
is whether a disinterested observer in her position with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions evidenced any o f the conditions set forth in 5 U.S.C.
§ 2302 (b)(8). Mudd , 120 M.S.P.R. 365, ¶¶ 5, 8. Any doubt or ambiguity as to
whether an appellant raised a nonfrivolous allegation of a reasonable belief
should be resolved in favor of a finding that jurisdiction exists. Id., ¶ 9.
Communications concerning policy decisions that lawfully exercise discretionary
authority are not protected whistleblowing unless the employee reasonably
believes that the disclosure evidences one of the categories of wrongdoing listed
in section 2302(b)(8) . 5 U.S.C. § 2302 (a)(2)(D); Webb v. Department of the
9
Interior , 122 M.S.P.R. 248, ¶ 8 n.6 (2015); O’Donnell v. Merit Systems
Protection Board , 561 F. App’x 926 (Fed. Cir. 2014).8
¶16 The appellant alleges that she disclosed an error in which FOIA exemption
the agency should invoke in withholding an agency climate survey that was the
subject of a FOIA request. IAF, Tab 4 at 27. As background, FOIA requires the
disclosure of certain Government records and information unless they fall under
one of nine exemption s. 5 U.S.C. § 552(a)-(b); Department of Justice Guide
to the FOIA (DOJ Gui de), Introduction at 1, 6 (Feb. 14, 2020),
https://www.justice.gov/oip/page/file/1248371/download . The appellant
disagreed with the agency’s use of two of those exemption s, commonly known as
exemptions 4 and 5. Exemptio n 4 applies to “trade secrets and commercial or
financial information obtained from a person and privileged or confidential.”
5 U.S.C. § 552(b)(4). FOIA exemption 5 generally applies , in relevant part, to
“inter -agency or intra -agency memorandums or letters that would not be available
by law to a party other than an agency in litigation with the agency .” 5 U.S.C.
§ 552(b)(5).
¶17 The appellant’s duties included review ing and respond ing to FOIA/PA
requests, including determining whether any exemptions applied to the
information and records being requested. IAF, Tab 4 at 27-28, 85 -87, 142. She
alleged below that, on September 16, October 21, and November 2, 2020, she
emailed her first -level supervisor and othe r managers, questioning whether FOIA
exemptions were being misapplied. IAF, Tab 4 at 6-11, 27 -28, 41-44, 97, 99 -101.
She also exhausted, at a minimum, her September 16 and November 2, 2020
8 The Board may follow nonprecedential Federal Circuit decisions that it finds
persuasive , as we do here. Dean v. Office of Personnel Management , 115 M.S.P.R.
157, ¶ 14 (2010).
10
FOIA disclosures with OSC.9 IAF, Tab 4 at 236, 238 -39, 249 ; PFR File, Tab 1
at 26.
¶18 The appellant’s colleagues and first -level supervisor advised her that she
should cite to exemption s 5 and 6, rather than to exemption 4, when explaining
why the agency was not releasing the climate survey . IAF, Tab 4 at 29-31. The
appellant alleged she disclosed to her first -level supervisor and other agency
officials that, in essence, exemption 4, which covers commercial information ,
“had enough coverag e” to permit withholding the requested climate survey . Id.
at 100. She also disagreed with her supervisor that exemption 5 applied to certain
portions of the survey, reasoning that exemption 5 concerned “letters or
memoranda ” and therefore did not includ e findings, report s, or surveys such as
the climate survey . Id. at 28, 100. She has not alleged that she disclosed that the
agency wrongfully withheld or intended to withhold information it was required
to disclose under FOIA. Id. at 27-28, 99-100.
¶19 The DOJ Guide makes clear that FOIA exemptions “describe specific
categories of information that are protected from disclosure, and generally they
are discretionary, not mandatory, in nature .” DOJ Guide , Introduction at 6. The
language of FOIA is consist ent with this interpretation, as it provides that
agencies “shall make available to the public” certain information but that this
mandate “does not apply” to information subje ct to an exemption . 5 U.S.C.
§ 552(a)-(b); see Chrysler Corp. v. Brown , 441 U.S. 281 , 290-94 (1979) (finding
that the “language, logic, and history” of FOIA does not require an agency to
withhold information that could be the subject of an exemption) . FOIA does not
9 Although the appellant has not provided evidence that she specifically raise d with
OSC her October 21, 2020 disclosure, we find that by exhausting her September and
November 2020 disclosures, she provided OSC with sufficient basis to pursue an
investigation into her intervening alleged disclosure of the same wrongdoing. See
Chamb ers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10 (explaining that the
substantive requirements of exhaustion are met when an appellant has provided OSC
with sufficient basis to pursue an investigation) (citations omitted).
11
require that an agency withhold information pursuant to an exemption . Brown ,
441 U.S. at 291-93. To establish jurisdiction over her FOIA disclosure, the
appellant must nonfrivolously allege that she reasonably believed i t evidenced
wrongdoing under 5 U.S.C. § 2302 (b)(8). 5 U.S.C. § 2302 (a)(2)(D) .
¶20 There is no indication in the record that the appellant is a lawyer. There are
also several references in the record to the appellant being a “new hire” starting
in approximately August 2020 and reflecting that she was in the process of
learnin g how to respond to FOIA requests . IAF, Tab 4 at 22, 134, 150, 231 -32.
These factors favor a finding that the reasonable person in her position could
believe that the misapplication of FOIA exemptions violated the statute . See
Mudd , 120 M.S.P.R. 365, ¶ 9 (2013) (considering an appellant’s lack of expertise
and experience in legal matters in finding that she made a nonfrivolous allegation
that the agency violated various laws, rules, and regulations). However, the
appellant indicated that, upon starting in her new position , she read the DOJ
Guide for “roughly three weeks . . . with a fine highlighter. ” IAF, Tab 4 at 7, 99,
236. She then relied on the DOJ Guide both in her disclosures and in her
pleadings as the basis for her belief that FOIA exemptions were being misapplied.
Id. at 9, 100 . Because the appellant both stated and demonstrated her familiarity
with the DOJ Guide, we find that she failed to nonfrivolously allege that a
reasonable person in her position c ould have believed the agency violated the law
by exercising its discretion to elect which exemptions to cite.
¶21 Similarly, i n O’Donnell , the court concluded that a Federal employee
could not reasonably believe that his supervisor’ s deter mination that a landowner
was not eligible for Government assistance was a violation of the Cons ervation
Reserve Program law . O’Donnell , 561 F. App’x at 930. The court reasoned that
the law granted discretionary authority to the agency, and the appellant’s
supervisor was in charge of exercising that discretion. Id. Here, as in the case of
the law at issue in O’Donnell , agencies generally have discretion to apply FOIA
exemption s, provided they do not withhold information they are required to
12
release under FOIA . Further, as the appellant acknowledged, her supervisor had
the au thority to determine whether to exercise that discretion. IAF, Tab 4 at 8,
28, 94, 98. Therefore , we find the appellant co uld not have reasonably believed
that the agency’s choice to rely on what she personally viewed as the incorrect
FOIA exemption was a violation of law.
¶22 Lastly , the appellant ’s claim that in making her disclosure she primarily
sought clarification from her supervisor about how t he FOIA exemptions are
applied further supports our finding that she did not reasonably believe that her
disclosure evidenced the misconduct listed in section 2302(b)(8) . IAF, Tab 4
at 9, 27-28; Webb , 122 M.S.P.R. 248, ¶¶ 11-12 (finding t hat an appellant’s emails
to agency officials requesting clarification as to whether a proposed policy ran
afoul of agency regulations did not constitute a disclosure of a violation of law,
rule, or regulation ). Thus, we find that the appellant failed to nonfriv olously
allege that her communications about the agency’s misapplication of FOIA
exemptions were protected disclosures .
The appellant failed to nonfrivolously allege that she made a protec ted disclosure
of harassment by her first -level supervisor .
¶23 On review, it is unclear whether the appellant re-raises her October 2020
disclosure s of supervisory harassment. However, she attaches her October 20,
2020 letter of caution, which reflects that she accused her supervisor of
“borderline harassment and intimidation” earlier that month. PFR File, Tab 1
at 42. Interpreting this pro se appellant’s petition for review in the light most
favorable to her, we read her submission as re -raising this alleged disclosure. See
Patterson v. U.S. Postal Service , 71 M.S.P.R. 332, 335 (1996) , aff’d per curiam ,
106 F.3d 425 (Fed. Cir. 1997) (Table) . Because the administrative judge did not
reach the issue of whether this dis closure was protected, we do so here .
¶24 The appellant alleged below that a round October 2020, she disclosed that
her first -level supervisor was harassing her by mistreating her, yelling at her , and
acting dismissive ly towar d her , which she claimed constituted an abuse of
13
authority . IAF, Tab 4 at 95, 105-09, 213, 225, 249 ; PFR File, Tab 1 at 26. The
record reflects that in an October 1, 2020 email, the appellant told her fi rst-level
supervisor that she “ notice [d] quite a few perceived eye -rolls from [her]” and
“felt that [ the appellant’s ] voice was not being heard, but dis missed, ” when
giving her opinion during a meeting with her first -level supervisor the previous
day. IAF, Tab 4 at 105, 108. On or about Octobe r 8, 2020 , when directed by her
supervisor to remove a personal quote from her official email signature block,
the appellant emailed her supervisor that “this is not a dictatorship” and that she
considered the incident “borderline harassment and intimidation.” Id. at 95.
Then , in a November 5, 2020 email, the appellant accused her supervisor of
“ignor [ing] [her] feelings” and “dismiss [ing] ” her “voice and concerns” by
requiring the presence of the appellant’s team lead at a meeting to review the
appellant’s cases, over the appellant’s objections . Id. at 119, 218 . She also
discussed this disclosure and that she “ objected to how [her] ‘voice’ and
concerns were being p ublicly dismissed and silenced ” in her response to OSC’s
preliminary determination. Id. at 218. The appellant further alleged to OSC th at
she had “raised concerns before of how [her first -level supervisor] . . . has
abused and mistreated [her]” and “ yelled and interrupted [her] . . . on numerous
occasions. ” Id. at 213. The appellant appears to have exhausted this disclosure
with OSC .
¶25 To constitute a nonfrivolous allegation, the allegation must be, as relevant
here, more than conclusory. 5 C.F.R. § 1201.4 (s)(1). A nonconclusory allegation
of wrongdoing is one that sets forth specific facts that describe a facially
plausible series of events . See Hessami , 979 F.3d at 1369 -70 (explaining that the
petitioner met the nonfrivolous pleading standard because, as relevant here, she
“set forth specific facts supporting [her] beliefs of wrongdoing” ); Linder v.
Department of Justice , 122 M.S.P.R. 14, ¶ 14 (2014) (explaining that a disclosure
of wrongdoing cannot be vague, but rather must be specific and detailed) . To the
extent that the appellant generally accu ses her supervisor of ignorin g her concerns
14
and yelling at, interrupting, harassing, intimidating, or dismissing her, these
allegations fail to provide any specifics from which we can conclude a reasonable
person would believe the ac tions involved constitu te wrongdoing .
¶26 The appellant ’s assertion that she objected to her team lead being included
in a case review meeting on one occasion is more specific . IAF, Tab 4 at 119.
Supervisory harassment may amount to an abuse of authority. Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 14 (2015). However, a reasonable
person in the appellant’s position , an employee admittedly learning her new
duties from, among others, her team lead, could not believe that having her team
lead attend a case review meeting was an abuse of discretion, gross
mismanagement, or any other wrongdoing within the scope of whistleblower
reprisal statutes . The statutory protection for whistleblowers is not a weapon in
arguments over policy or a shield for insubordinate conduct . Webb ,
122 M.S.P .R. 248, ¶ 8. The Board has found an employee’s disagreement over
job-related issues is insufficient to amount to a protected disclosure. Francis v.
Department of the Air Force , 120 M.S.P.R. 138, ¶ 12 (2013); see Mc Corcle v.
Department of Agriculture , 98 M.S.P.R. 363, ¶ 22 (2005) (finding that an
appellant’s disclosure of his disagreement with the agency’s decision to assign
him clerical and other duties, allegedly wasting his ti me and expertise, failed to
amount to a nonfrivolous allegation of gross mismanagement ). Thus, we find
that the appellant failed to nonfrivolously allege that she reasonably believed she
was disclosing harassment th at evidenced wrongdoing under 5 U.S.C.
§ 2302 (b)(8) .
The appellant failed to nonfrivolously allege that her remaining disclosure
regarding lunch and other breaks was protected .
¶27 According to OSC’s preliminary determination l etter, the appellant also
alleged in her OSC complaint that she disclosed that “ improprieties were
occurring regarding lunch breaks and related break policy interpretations. ” PFR
File, Tab 1 at 26; IAF, Tab 4 at 233. It is not entirely clear if the appel lant
15
sought to raise this alleged disclosure below. However, we address it on review
because it is contained in OSC’s preliminary determination letter, which she
submitted for the first time on review. PFR File, Tab 1 at 26.
¶28 This alleged disclosure appears to have arisen out of an instruction from the
appellant’s supervisor to the appellant in the October 20, 2020 letter of caution
that the appellant “conform [her] emails and correspondence to standard
language for such communications .” PFR File, Tab 1 at 26; IAF, Tab 4 at 94,
233. As examples , the appellant’s supervisor noted that the appellant had
resisted a prior instruction to cease using the word “humbly” in her
correspondence. Id. at 95. The letter also reflected that the appellant had
responded to her supervisor instructing her to remove a personal quote from her
signature block that “[she] would remove it from some emails but not all
emails .” Id.
¶29 In an October 21, 2020 email to the Head of the Security Programs and
Information Managemen t Branch and another agency official , the appellant
asserted that , when it came to writing emails, she ha d a right to “express [her]
thoughts . . . [i]f it is not germane to the FOIA/PA office, or while [she was] on
[her] lunch period , . . . as [she] see[s] fit.” IAF, Tab 4 at 99. Assuming we have
correctly interpreted this alleged disclosure, it is apparent that the supervisor’s
instruction wa s directed at agency communications to “requesters [and] record
holders .” Id. at 94-95. We discern no basis f or a reasonable person in the
appellant’s position to believe that her supervisor was referring to personal
communications . Further, we find that no reasonable person in the appellant’s
position could reasonably believe that her supervisor’s instructions regarding the
ministerial details of official communications evidenced agency wrongdoing .
See Francis , 120 M.S.P.R. 138, ¶ 12; Mc Corcle , 98 M.S.P.R. 363, ¶ 22.
¶30 Because the appellant has failed to raise a n onfrivolous allegation that
she made a prote cted disclosure, it is unnecessary to determine whether she raised
a nonfrivolous allegation that her disclosures were a contributing factor in a
16
personnel action. See Schmittling v. Department of the Army , 219 F.3d 1332 ,
1336 -67 (Fed. Cir. 2000) (observing that the Board may find it lacks jurisdiction
over an IRA appeal if any one of the jurisdictional prerequisites are not met).
Therefore, we find that this IRA appea l must be dismissed for lack
of jurisdiction.10
NOTICE OF APPEAL RIG HTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking s uch review and the appropria te
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
10 On review, the appellant makes a new disclosure regarding the misapplication of a
FOIA exemption and alleges for the first time that, in retaliation for the instant Board
appeal , her first -level supervisor subjected her to another personnel action, i.e. , a
September 17, 2021 letter of caution. PFR File, Tab 1 at 20-23, 4 4-48, 52. However,
these incidents occurred after OSC issued its July 31, 2021 close -out letter. IAF, Tab 4
at 249-50. T he appellant has not allege d or submitted evidence that she has exhausted
her administrative remedies with OSC with respect to these matters, a nd therefore she
has not met her jurisdictional burden .
The appellant also appears to argue that the administrat ive judge was biased against her
because she rushed to dismiss the appeal without addressing many arguments the
appellant raised, she did not thoroughly examine the appellant’s evidence, and she
insinuated that the appellant did not have permission to have a Bluetooth radio in her
office. PFR File, Tab 1 at 4, 10, 22 -23. The lack of permission for the Bluetooth radio
was a concern in the alleg ed security investigation that the appellant alleged was a
personnel action. IAF, Tab 4 at 52, 246 . There is a presumption of honesty and
integrity on the part of administrative judges that can only be overcome by a substantial
showing of personal bias, and the Board will not infer bias b ased on an administrative
judge’ s case -related rulings . Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 ,
¶ 18 (2013). W e find that the appellant’s arguments regarding the speed and
thoroughness with which the administrative judge handled her claims, and any findings
she made regarding the Bluetooth radio, fail to overcome th is presumption o f honesty
and integrity.
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.
17
summary of available appeal rights, the Merit Systems Protection Board does not
provid e legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decisi on, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismis sal of your case by your
chosen forum .
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for mo re information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
18
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, colo r, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). Yo u must file any such request with the
19
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case ,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be a ddressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to y ou only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices describe d in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.12 The court of appeals must receive your
12 The ori ginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
20
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 co urt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, perma nently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
21
Contact information for the courts of appeals can be 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 | BASIL_TONEISHA_M_DC_1221_21_0633_W_1_FINAL_ORDER_2014273.pdf | 2023-03-23 | null | DC-1221 | NP |
3,366 | https://www.mspb.gov/decisions/nonprecedential/GHUNEIM_AHMAD_ZAKI_AT_0752_21_0253_I_1_FINAL_ORDER_2014298.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AHMAD ZAKI GHUNEIM,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -21-0253 -I-1
DATE: March 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ahmad Zaki Ghuneim , Saint Peter sburg, Florida, pro se.
Adam Stoffa , Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitio ned for review , and the agency has cross -petitioned
for review, of the initial decision in this appeal. Petition for Review (PFR) File,
Tabs 1, 3; Initial Appeal File, Tab 15, 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 s for review, the parties submitted a document
entitled “ Joint Settlement Agreement and Withdrawal of Appeal” dated and
signed by both parties on February 7, 2023. PFR File, Tab 6 , at 7 . The
document provides, among other things, for the dismissal of the appeal . Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). I n 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
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 6 . Accordingly, we find that
dismissing the petition for review with prejudice to refiling (i.e., the parties
normally may not refile this appeal) is appropriate under these circumstances. In
addition, we find that the agreeme nt 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 Regulation s, 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 a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, th e nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available ap peal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriat e 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 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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within th e court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informatio n regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action 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 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
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:
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 raise d
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you m ust submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available a t the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pr o bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Fe deral 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 | GHUNEIM_AHMAD_ZAKI_AT_0752_21_0253_I_1_FINAL_ORDER_2014298.pdf | 2023-03-23 | null | AT-0752 | NP |
3,367 | https://www.mspb.gov/decisions/nonprecedential/BROWN_JAMES_E_SF_844E_16_0508_I_1_FINAL_ORDER_2014387.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES E. BROWN, II,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-844E -16-0508 -I-1
DATE: March 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory A. Tibbs , Waldorf, Maryland, for the appellant.
Thomas Styer , 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 a ppellant has filed a timely petition for review of the initial decision
that affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disabil ity retirement as untimely filed . Generally, we
grant petitions such as this one only when: 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 administr ative judge’ s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or leg al argument is availab le that, despite
the petitioner’ s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant , formerly employed by the Smithsonian Institut ion
(Smithsonian ), resigned from Federal service in 2012 . Initial Appeal File (IAF),
Tab 5 at 30. More than 3 years after resigning , he filed an application for
disability retirement under the Federal Employees’ Retirement System (FERS) .
Id. at 32-35. OPM issued a decision den ying his disability retirement application
as untimely since it was filed more than 1 year after the appellant separated from
service. Id. at 10-11 (citing 5 U.S.C. § 8453 ). OPM , however : (1) informed the
appellant that the law permit ted a waiver of the time limit if an employee show ed
that he was mentally incompetent at the time of separation from service or within
1 year thereafter ; and (2) invited him to provide evidence showing that his delay
3
was caused by mental incompetence. Id. at 10, 14. The appellant filed a request
for reconsideration but indicat ed that he would not be provid ing any additional
evidence.3 Id. at 7.
¶3 OPM then issued a final decision sustaining its original decision that
dismiss ed the appellant’s disability retirement application as untimely filed . Id.
at 4-5. The appellant appealed the final decision to the Board an d requested a
hearing. IAF, Tab 1 at 3 . During the hearing, he testified that his physical
condition prompted his resignation because it affected his lower extremities and
required bypass surgery followed by a 6-to-8-month recovery period. IAF, Tab 8,
Hearing Compact Disc (HCD), Tab 9, Initial Decision (ID) at 4 . He also testified
that the Smithsonian did not notif y him about the filing deadline when he
resigned . ID at 4; HCD. The administrative judge issued an initial decision
affirm ing OPM ’s final decision denying the disability retirement application as
untimely filed . ID at 5 . He reasoned that the appellant neither argued nor
presented evidence that he untimely filed because of mental incompetence. I D
at 2-3. The administrative judge also found that the Smithsonian ’s alleged failure
to notify the appellant of the deadline was not a basis for waiver.4 ID at 4 -5.
¶4 The appellant has timely petition ed for review . Petition for Review (PFR)
File, Tab 1.5 He does not specify the nature of his challenges but offer s, for the
first time, medical documentation showing that: (1) before his resignation , he
3 The appellant’s disability retirement application did not elaborate on the nature of his
disability. IAF, Tab 5 at 32 -35.
4 The appellant does not challenge this finding on review, and we see no basis to disturb
it. See Chapman v. Office of Personnel Management , 110 M.S.P.R. 423 , ¶ 11 (2009)
(observing that an agency has no duty to inform a FERS employee who voluntarily
resigns of the time limit for applying for disability reti rement).
5 Although the appellant state s that he is “requesting reconsideration ,” PFR, Tab 1
at cover page, we treat his request as a petition for review , 5 C.F.R. § 1201.114 (a)(1)
(explaining that a petition for review is a pleading in which a party contends that an
initial decision was incorrectly decided).
4
suffered various physical conditions that necessitated a bypass surgery on his leg ;
and (2) after his resignation , he was prescribed various medications, including
anti-depressants and anti-anxiety medication s. Id. at 1-27. OPM has not
respond ed to his petition for review.
¶5 We read the appellant’s petition for review as asserting that the disability
retirement filing deadline should have been waived under the statute . However,
the relevant waiver statute , 5 U.S.C. § 8453 , is inapplicable here. I t provides that
a waiver may be allowed only if an employee is me ntally incompetent “at the date
of separation from service or within 1 year thereafter .” During the proceeding
below, the appellant unambiguously stated that he “was not claiming mental
incompetence.” IAF, Tab 7 at 2 . To the extent that the appellant is arguing, for
the first time on review, that he qualifies for a waiver because he suffers from
anxiety and depression , we decline to consider this new argument. See Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (finding that t he Board
need 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 previo usly
unavailable despite the party’s due diligence).6
¶6 On appeal, t he appellant expressly stated that he was not claiming mental
incompetence. ID at 2 -3. In addition, he does not explain on review why he
could not present his medical evidence , which is dated before the initial decision
was issued, below . ID at 1; PFR File, Tab 1 at 20 ; see Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (19 80) (observing that the Board will not consider
6 Moreover, an anti-depressant or anti-anxiety prescription cannot warrant a waiver of
the filing deadline , given that an e mployee’s depression or anxiety does not
automatically amount to mental incompetence envisioned by the statute . See Burton v.
Department of Veterans Affairs , 83 M.S.P.R. 174 , ¶ 7 (1999). Rather, the employee is
required to explain why these conditions “impaired his ability to meet the . . . filing
limits or seek an extension of time .” Id. Here, t he appellant did not provide any s uch
explanation.
5
new evidence submitted on review absent a showing that it was unavailable
before the record closed despite the party’s due diligence).
¶7 Accordingly , we discern no basis to d isturb the administrative judge’ s
finding s that waiver of the filing deadline was unwarranted and we find that OPM
properly dismissed the appellant’s disability retirement application as untimely
filed .
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
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.
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 m atter.
6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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
7
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no lat er than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be access ed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later th an 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial r eview either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_JAMES_E_SF_844E_16_0508_I_1_FINAL_ORDER_2014387.pdf | 2023-03-23 | null | SF-844E | NP |
3,368 | https://www.mspb.gov/decisions/nonprecedential/JACKSON_CHINIQUA_DE_0714_20_0204_I_1_FINAL_ORDER_2014481.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHINIQUA JACKSON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -20-0204 -I-1
DATE: March 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chiniqua Jackson , Denver, Colorado, pro se.
Chau Phan , Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the July 28, 2020 initial decision
in this appeal. Initial Appeal File, Tab 15, 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 to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AND COMPROM ISE AGREEMENT” signed and dated
by the appellant on February 5, 2023 , and by the agency on February 8, 2023.
PFR File, Tab 4 at 8 . The document provides, among other things, that the
appellant would withdraw 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
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 agree that the agreement will be entered into the record
for enforcement by the Board. PFR File, Tab 4 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 ).
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 agr eement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action w ith 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 decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you ma y visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants th at
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 | JACKSON_CHINIQUA_DE_0714_20_0204_I_1_FINAL_ORDER_2014481.pdf | 2023-03-23 | null | DE-0714 | NP |
3,369 | https://www.mspb.gov/decisions/nonprecedential/BURGESS_CONNER_DC_0752_16_0842_I_1_FINAL_ORDER_2014495.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CONNER BURGESS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -16-0842 -I-1
DATE: March 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Conner Burgess , King George, Virginia, pro se.
Denise Gillis , Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has file d a petition for review of the initial decision, which
dismissed this appeal for lack of jurisdiction. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 ARGUME NTS ON REVIEW
¶2 In this appeal, the appellant sought to challenge a proposed removal,
providing 15 pages of argument regarding the merits of the agency’s proposed
action. Initial Appeal File (IAF), Tab 1. In addition to the usual
acknowledgment order, the administrative judge issued a separate jurisdictional
order in which he explained that the Board lacks authority to adjudicate a
proposed action , such as a proposed removal , and directed the appellant to file
evidence and argument to establish that the agency had issued a final decision
removing him and that his appeal was timely filed. IAF, Tabs 4 -5. The appellant
failed to respond to the jurisdictional order , and the administrative judge
consequently dismissed the appeal for lack of jurisd iction , finding that the record
did not indicate that the appellant had been issued a final removal decision or had
been subject to any appea lable adverse action. IAF, Tab 6, Initial Decision (ID).
¶3 In his petition for review, the appellant includes a partial copy of a June 24,
2016 memorandum from the deciding official to human resources personnel ,
3
which appears to be a decision to remove him, but the appellant does not submit a
copy of the actual decision letter . Petition for Review (PFR) File, Tab 1 at 4-9.3
He also includes a copy of the only submission he made below, highlighted to
emphasize several passage s, but with no further argument, analysis, or even a
mention of the administrative judge’s decision in his appeal below . Id. at 10-23.
The agency did not respond.
¶4 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the reco rd was closed despite the party’ s due diligence.
Avansino v. U.S. Postal Servic e, 3 M.S.P.R. 211 , 214 (1980) . In addition, the
Board will not grant a petition for review based on new evidence absent a
showing that it is of s ufficient weight to warrant an outcome different from that
of the initial decision . Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349
(1980).
¶5 The administrative judge gave the appellant ample notice of his burden to
establish jurisdiction over his appeal, explicitly explaining that , because he had
alleged that the agency merely had proposed his removal , he must show that the
agency actually had removed him to satisfy his burden . IAF, Tabs 4 -5. As noted
above, t he appellant did not respond . O n review, the appellant has provide d
evidence that the agency may have removed him, given that he submitted what
appears to be a partial removal letter . H owever, the partial copy of the
memorandum regarding his removal does not identify an effective date for the
removal and there is no Standard Form 50 reflecting his removal . PFR File,
Tab 1 at 4 -9. Moreover, the other document he submits on review merely
highlights portions of the sole submission he made in his appeal below, which did
not show that the agency removed him . Id. at 10 -23; IAF, Tab 1 .
3 The appellant submitted a sideways scan of the lette r, printed in landscape mode, such
that a portion of each page appears to be missing. PFR File, Tab 1 at 4 -9.
4
¶6 Thus , even if we were to consider the appellant’s new evidence, as noted
above, it does not show definitiv ely that the agency actually effected his removal
and is therefore insufficient to meet the appellant’s burden to establish
jurisdiction over his appeal . Considering the record before him, the
administrative judge correctly found that the appellant failed to establish
jurisdiction over his appeal . On review, t he appellant identifies no new evidence
unavailable despite his due diligence before the close of the record below that
demonstrates otherwise. Accordingly, we deny the ap pellant’s petition for
review.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 such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on w hich option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
imme diately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure 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
4 If the appellant has been removed, then he may file an appeal with the Board’s
regional office. We make no finding at this time whether that appeal will or will not be
deemed timely filed.
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 opt ion is most appropriate in any matter.
5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar d ays of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular 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
7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain 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.
8
U.S. Court of Appeals
for the Federal Cir cuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any atto rney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BURGESS_CONNER_DC_0752_16_0842_I_1_FINAL_ORDER_2014495.pdf | 2023-03-23 | null | DC-0752 | NP |
3,370 | https://www.mspb.gov/decisions/nonprecedential/KEEL_RYAN_D_DE_0714_21_0058_I_1_FINAL_ORDER_2014496.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RYAN D. KEEL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -21-0058 -I-1
DATE: March 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esq uire, Canton, Michigan, for the appellant.
Dana Marie Sherman , Denver, Colorado, for the agency.
Johnston Walker and LaTasha C. Clark , Jackson, Mississippi, for the
agency.
Kyle Ray Johnson , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we DISMISS the appeal
as settled.
¶2 While the petition for review was pending, the appellant su bmitted a
copy of a Settlement Agreement, signed and dat ed by the appellant on
February 24, 2023, and by the agency on February 27 , 202 3. Petition for Review
File, Tab 7 at 4-9. The agr eement provides for the withdrawal of the appeal in
exchange for certain promises made by the agency, and the parties have further
agreed for the agreement to be entered into the record for enforcement purposes.
Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties h ave 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 agreemen t into the record
for enforcement purposes, the Board must determine whether the agreement is
lawfu l on its face and whether the parties freely entered into it. See Massey v.
Office of Personnel Management , 91 M.S.P.R. 2 89, ¶ 4 (2002), overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding th at 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 the settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. We further find that the agreement is lawful on its
face and that the parties freely entered into it. Accordingly, we find it
appropriate to dismiss the appeal with prejudice to refiling (i.e., the parties
3
normally may not refile this appeal), and enter the agreement into the record for
enforcement purposes.
¶5 This is the fi nal decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
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. § 7 703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in th e notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you hav e questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order m ust file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro 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.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color , religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | KEEL_RYAN_D_DE_0714_21_0058_I_1_FINAL_ORDER_2014496.pdf | 2023-03-23 | null | DE-0714 | NP |
3,371 | https://www.mspb.gov/decisions/nonprecedential/MANNING_EILEEN_L_PH_0831_17_0200_I_1_FINAL_ORDER_2013718.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EILEEN L. MANNING,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -17-0200 -I-1
DATE: March 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frizzell T. Green , Baltimore, Maryland, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision finding 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
appellant ineligible to retire under her former employing agency’s voluntary early
retirement authorit y (VERA) program offered in 1979 . For the reasons discussed
below, we GRANT the agency’s petition for review and VACATE the initial
decision. We DISMISS the appellant’s retirement appeal for lack of jurisdiction.
BACKGROUND
¶2 The appellant was employed by the Social Security Administration (SSA)
for nearly 40 years , until she retired from her GS -05 position . Initial Appeal File
(IAF), Tab 7 at 42, 78, 86-88. In 1979 , while she was employed at SSA , OPM
authorized SSA to offer voluntary early retirement to SSA employees at the
GS-12 level and above, within the appellant’s geographic location, who were at
least 50 years of age with 20 years of experience or any age with 25 years of
experience, among other specified criteria. Id. at 22-23. There is no indica tion
from the record that the agency extended that VERA offer to the appellant or that
she applied for voluntary early optional retirement . Instead, o n October 5, 1993,
she applied for an optional (other than early optional ) retirement annuity under
the Civil Service Retirement System (CSRS). Id. at 80. OPM granted her
application , effective December 31, 1993, and commenced her annuity payments,
effective January 1, 1994. Id. at 42, 75, 82.
¶3 On December 14, 2015, the appellant sent a letter to OPM , argu ing that she
was eligible to retire under the 1979 VERA and requesting a declaration to that
effect because she believed it would “assist her in rec eiving Social Security
Benefits.” Id. at 58 -64. In a January 15, 2016 initial decision, OPM determined
that the appellant was i neligible for the 1979 VERA because she did not meet the
grade level requirement and advised her that she could file a request for
reconsideration . Id. at 12-13. In her request for reconsideration, t he appellant
reasse rted her VERA e ligibility claim . Id. at 52-57. On February 9, 2017, OPM
issued a reconsideration decision, affirming its initial decision and notifying the
appellant of her Board appeal rights. Id. at 8-10.
3
¶4 The appellant filed this appeal, arguing that she was eligible for the
1979 VERA because she met the statutory requirements to qualify for voluntary
early retirement in effect at the time , even though she did not meet the grade level
requirement imposed by OPM and the agency . IAF, Tab 1 at 5. Essen tially, she
asserts that OPM exceeded its legal authority by limit ing VERA eligibility to
employees at the GS -12 level and above . Id. She further assert s that OPM’s
error prevented her from obtaining the SSA benefits to which she was entitled.
Id.
¶5 The administrative judge issued an initial decision, reversing OPM’s
reconsideration decision. IAF, Tab 15, Initial Decision (ID) at 1, 7. She
determined that the Board had jurisdiction over the appeal under 5 U.S.C.
§ 8461 (e)(1). ID at 1. She found that OPM lacked the authority to limit VERA
eligibility based on grade level . ID at 3-7. Thus, she concluded that its
determination that the appellant was not eligible for the 1979 VERA on that basis
was incorrect. ID at 5-7.
¶6 OPM has filed a petition for review of the initial decision, arguing for the
first time that both OPM and the Board lack jurisdiction over the appellant’s
claims and, as a result, OPM’s reconsideration decision and the Board’s in itial
decision should be vacated . Petition for Review (PFR) File, Tab 1 at 7 -10. The
appellant has submitted a response.3 PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On review, OPM asserts that its reconsideration decision does not implicate
the appellant’s rights and interests under CSRS because she has not applied for
voluntary early retirement. PFR File, Tab 1 at 8. OPM further contends that,
absen t a decision implicating the appellant’s rights and interests under CSRS, the
3 The appellant also submitted a request for damage s and settlement offer to the Board’s
Northeastern Regional Office after the issuance of the initial decision. IAF, Tab 17.
We need no t consider those arguments in light of our dismissal of this matter for lack of
jurisdiction.
4
Board has no basis for asserting jurisdiction under 5 U.S.C. § 8347 (d)(1). Id. We
agree .
¶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 issue of Board
jurisdiction is always before the B oard and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding. Hasanadka v. Office
of Personnel Management , 116 M.S.P.R. 63 6, ¶ 19 (2011). The existence of
Board jurisdiction is a threshold issue in adjudicating an appeal. Id. The Board’ s
jurisdiction over CSRS retirement cases is governed by 5 U.S.C. § 8347 (d)(1).4
Hasanadka , 116 M.S.P.R. 63 6, ¶ 19. Under that provision, t he Board generally
has jurisdiction over a matter affecting the rights or interests of an individual
under CSRS only after OPM has issued a final decision on the merits of that
matter . Id.; see 5 U.S .C. § 8347 (d)(1); 5 C.F.R. § 831.110 .
¶9 The appellant argues that OPM exceeded its authority by limiting VERA
eligibility based on employee g rade level . PFR File, Tab 3 at 3 -4 (citing An Act
to Permit Immediate Retirement of Certain Federal Employees, Pub. L.
No. 93-39, 87 Stat. 73 (1973) (codified as amended at 5 U.S.C. § 8336 (d)(2) (E));
IAF, Tab 13 at 2 -4. She asserts that t he only criteria permitted for a VERA in
1979 were age and years of Federal service . PFR File, Tab 3 at 6 . She further
argues that her entitlement to the VERA is a right or interest under the CSRS
regardless of whether she applied for the VERA. Id. at 3-4. She reason s that if
she was eligible for the 1979 VERA, she would be exempt from the Government
pension o ffset (GPO) , pursuant to which SSA reduced her spousal Social Security
benefit to zero . IAF, Tab 7 at 46-47, Tab 10 at 1-6, 9-10. Under the GPO, the
amount of an individual’s Social Security age-old benefit is reduced based on her
4 Section 8461(e)(1) of Title 5, cited by the administrative judge as the basis for Board
jurisdiction here, is i napplicable. ID at 1. It grants the Board jurisdiction over OPM
determinations under the Federal Employees’ Retirement System .
5
receipt , as applicable here, of a CSRS annuity . 42 U.S.C. § 402(k)(5)(A);
Moriarty v. Office of Personnel Managem ent, 47 M.S.P.R. 280 , 282 (1991) , aff’d
per curiam , 989 F.2d 1202 (Fed. Cir. 1993) (Table).
¶10 The appellant apparently i s not seeking an annuity based on her eligibility
for voluntary early optional retirement . PFR File, Tab 3 at 3; IAF, Tab 13 at 2,
Tab 14 at 6 . While she applied and was found eligible for an optional (other than
early optional) retirement annuity, she has not alleged , and nothing in the record
indicates , that she applied for an annuity under the 1979 VERA . IAF, Tab 7
at 76-81, Tab 13 at 2 . Instead, the appellant seeks to have OPM issue an opinion
as to her VERA eligibility to influence SSA’s determina tion regarding her Social
Security benefits. PFR File, Tab 3 at 3; IAF, Tab 1 at 5. Thus, under these
circumstances, the appellant has not met her burden to prove that OPM’s
February 9, 2017 decision implicates her rights or interests under CSRS . IAF,
Tab 7 at 8-10; see Miller v. Office of Personnel Management , 123 M.S.P.R. 68 ,
¶ 9 (2015) (determining that the Board lacks jurisdic tion over OPM’s decision not
to waive collection of an annuity overpayment indirectly received by an
individual who was without rights to the funds under CSRS ); Moriarty ,
47 M.S.P.R. at 287 -88 (adjudicating an employee’s claim that his election to
change retirement systems was involuntary as a result of OPM’s misleading
statements concerning the GPO); 5 C.F.R. § 1201.56 (b)(2) (i)(A) (explaining that
an appellant must prove jurisdiction over her appeal by preponderant evidence ).
¶11 As a result, OPM ’s February 9, 2017 letter does not qualify as an appealable
reconsideration decision , even though OPM characterized it as such .5 IAF, Tab 7
at 8-10; see 5 C.F.R. § 831.109 (a) (granting “any individual or agency whose
rights or interests under [CSRS] are affected by an initial decision of [OPM] . . .
[the right to] request OPM to review its initial decision ” (emphasis added) ).
Further, without an actual claim for retirement benefits by the appellant, and an
5 Further, OPM effectively has vacat ed its February 9, 2017 reconsideration decision on
review . PFR File, Tab 1 at 4.
6
actual decision on that claim by OPM, any decision by the Board about what the
appellant may or may not be ent itled to would be an advisory opinion, which the
Board is expressly prohibited from issuing. See 5 U.S.C. § 1204 (h); Blaha v.
Office of Personnel Management , 108 M.S.P.R. 21, ¶ 11 (2007). The erroneous
notification of appeal rights included in the February 9, 2017 letter does not
confer Board jurisdiction. Poole v. Departmen t of the Arm y, 117 M.S.P.R. 516,
¶ 20 (2012 ) (explaining that the mere fact that an agency informs an appellant of
a right to appeal to the Board does not confer jurisdiction on the Board).
¶12 Accordingly, u nless and until the appellant applies for voluntary early
optional retirement and receives a decision from OPM on h er application, we
have no basis to find Board jurisdiction over this retirement matter.6 We
therefore vacate the initial decision and dismiss the appellant’s retirement appeal
for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts wi ll rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
6 OPM also argues that the Board lacks jurisdiction over the appellant’s challenges to
the 1979 VERA criteria selecte d by SSA. PFR File, Tab 1 at 9. We need not address
that argument in light of our dis missal for lack of jurisdiction for the above stated
reasons .
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for 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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representa tive receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Altern atively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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).
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.
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 | MANNING_EILEEN_L_PH_0831_17_0200_I_1_FINAL_ORDER_2013718.pdf | 2023-03-22 | null | PH-0831 | NP |
3,372 | https://www.mspb.gov/decisions/nonprecedential/ALLMOND_MELVIN_L_CH_752S_16_0617_I_1_FINAL_ORDER_2013731.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MELVIN L. ALLMOND,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-752S -16-0617 -I-1
DATE: March 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Otis J. Sturdivant , Maple Heights, Ohio, for the appellant.
Suzanne B. McCabe , Esquire, Philadelphia, 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 his enforced leave appeal for lack of jurisdiction. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
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
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 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 h as not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision , which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 The appellant, a Level 5 Mail Handler, filed an appeal in which he appeared
to challenge an August 8, 2016 decision by the Equal Employment Opportunity
Commission upholding the agency’s decision dismissing his 2013 equal
employment opportunity (EEO) complaint for failure to state a claim. Init ial
Appeal File (IAF), Tab 1 at 2, 13 -15. In that complaint, the appellant alleged that
the agency discriminated against him based on his race, sex, and age when, on
June 23, 2013, he was asked to remove his hoode d sweatshirt, and when, on
June 29, 2013, after refusing to do so, he was forced to leave the building. Id.
at 13. The agency determined that the appellant took annual leave when he left
work on June 23, and that, on June 29, he worked a full day. Id. at 13 -14.
¶3 The administrative judge acknowle dged the appeal as the appellant’s
challenge to a suspension for 14 days or less. IAF, Tab 2 at 2. She explained that
the Board generally lacks jurisdiction over su ch actions, except when the
appellant claims that the agency’s action was taken in retalia tion for his protected
disclosures or certain protected activities, that it was in violation of his veterans’
3
preference rights, or that it was an act of discriminat ion against him based on his
uniformed service, and she ordered him to file evidence and ar gument that the
action he sought to appeal is within the Board’s jurisdiction . Id. at 2-3. The
agency moved that the appeal be dismissed for lack of jurisdiction and as
untimely filed . IAF, Tab 4.
¶4 Because the appellant identified himself as a preference eligible, IAF, Tab 1
at 1, 24 , and submitted supporting documentation , id. at 22, the administrative
judge issued separate orders setting forth the appellant’s burden to establish the
Board’s jurisdiction under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) and the Veterans Employment
Opportunities Act of 1998 (VEOA) , and directing him to respond if he was
alleging a violation of either statute . IAF, Tabs 5 -6.
¶5 In hi s response, which was untimely filed as to all three of the
administrative judge’s orders, the appellant stated that the agency subjected him
to a furlough from June 2013 through August 2013, that he cont racted an illness
while in military service during the Viet nam War, and that his “E.E.O. appeal
didn’t have complete adjudication or exhaustion . . . until October 2016.” IAF,
Tab 8 at 3. He also submitted documents relating to h is EEO complaint and to
the agency’s dress code, and numerous photos of his work site. IAF, Tab 8.
¶6 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction.3 IAF, Tab 11, Initial Decision (ID)
at 2, 4. She considered the appellant’s allegation that the agency “improperly
placed him on enforced leave for three days in June 2013”4 because he wore a
3 Based on her dismissal of the appeal for lack of jurisdiction, the administrative judge
did not consider whether it was timely filed. ID at 4.
4 The record does not support the administrative judge’s statement that the appellant in
fact alleged that he w as placed on enforced leave for 3 days. However, because we
agree with the administrative judge’s ultimate disposition in this case, any error on her
4
hooded sweatshirt at work. She found , however, that he failed to nonfrivolously
allege that the agency placed him on enforced leave for more than 14 days, which
would be an appealable action, Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 ,
¶ 10 (2014), ID at 2 -3, and that he also failed to nonfrivolously allege that the
Board has jurisdiction over hi s appeal under either USERRA or VEOA. ID at 3.
In the absence of Board jurisdiction, the administrative judge found no basis upon
which to consider the appellant ’s claims of discrimination. ID at 4.
¶7 The appellant has filed a petition for review , Petit ion for Review (PFR)
File, Tab 1, to which the agency has respon ded.5 PFR File, Tab 3.
¶8 In his petition, the appellant argues the merits of his EEO complaint ,
claiming that agency employees were allowed to wear hooded sweatshirts at work
and that he chose to leave the workroom floor , presumably on June 23, 2013, “to
keep [his] cool .” PFR File, Tab 1 at 3, 5 -6. He has not, however, shown by these
claims that he nonfrivolously alleged either that he was su bjected to an
appealable action; that is, that he was placed on enforced leave for more than
14 days, Abbott , 121 M.S.P.R. 294 , ¶ 10, that the agency violated his rights under
VEOA, Becker v. Department of Veterans Affairs , 112 M.S.P.R. 507 , ¶ 6 (2009),
or that the agency discriminated against him under USE RRA by denying him a
part did not prejudice the appellant’s substantive rights. Panter v. Department of the
Air Force , 22 M.S.P.R. 281 , 282 (1984).
5 The agency’s response was untimely fi led by 1 day. PFR File, Tab 2 -3. The Clerk of
the Board afforded the agenc y an opportunity to submit a declaration signed under
penalty of perjury stating why there is good cause for the late filing, PFR File, Tab 4,
and the agency submitted such a declaration, explaining that its representative
inadvertently scheduled the task in his calendar for the wrong day, PFR File, Tab 5.
The Board has found that a representative’s clerical errors do not provide good cause to
waive a filing deadline. Ferrin -Rogers v. U.S. Postal Service , 115 M.S.P.R. 140 , ¶ 7
(2010). This is especially so in light of the agency representative’s decision to schedule
the filing for the last possible day. PFR File, Tab 5 at 6; see Gill v. Department of the
Treasury , 41 M.S.P.R. 267 , 267 -70 (1989). However , we need not decide this
timeliness issue because, even c onsidering the response to the petition for review, it
would have no effect on the outcome of this case. Ferrin -Rodgers , 115 M.S.P.R. 140 ,
¶ 7.
5
benefit of employment, Palumbo v. Department of the Interior , 112 M.S.P.R. 206 ,
¶ 6 (2009). The appellant therefore has failed to show that the administrative
judge erred in dismissing his appeal for lack of jurisdiction. And, in the absence
of Board jurisdiction, the provisions of 5 C.F.R. § 1201.154 , which under certain
circumstances, provide for Board review of an agency’s final decision on an EEO
complaint, do not apply.6
¶9 Finally, t o the extent the appellant argues on review that he is hampered in
arguing his c ase before the Board because he is not an attorney, PFR File, Tab 1
at 5, it is well established that an appellant is responsible for the errors of his
chosen representative , even if he is representing himself . Sofio v. Internal
Revenue Service , 7 M.S.P.R. 667 , 670 (1981).
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
6 With his petition for review, the appellant has submitted a number of documents,
including a medical report from his psychologist, PFR File, Tab 1 at 4, which, although
dated after the close of the record below, does not constitute n ew evidence. Grassell v.
Department of Transportation , 40 M.S.P.R. 554 , 564 (1989) (holding that to constitute
new and material evidenc e, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when the
record closed) . Nor is the report material to the dispositive jurisdictional issue of this
appeal. Russo v. Vetera ns Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the
Board generally will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision). The remaining documents the appellant has submitted on review
include an undate d letter he wrote to his Congresswoman, PFR File, Tab 1 at 8 -10, a
pleading from a 2003 juvenile court proceeding, id. at 11, an article regarding the
agency ’s policy against “Workplace Harassment,” id. at 13 -14, a Wikipedia article, id.
at 15-18, and a 20 14 internet post, id. at 19 -22. The se documents are neither new nor
material. Russo , 3 M.S.P.R. at 349; Avansino v. U.S. Postal Service , 3 M.S.P .R. 211 ,
214 (1980).
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 a ny matter.
6
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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/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
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
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdict ion.
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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALLMOND_MELVIN_L_CH_752S_16_0617_I_1_FINAL_ORDER_2013731.pdf | 2023-03-22 | null | CH-752S | NP |
3,373 | https://www.mspb.gov/decisions/nonprecedential/WASHINGTON_SANDRA_V_CH_0752_14_0172_I_3_FINAL_ORDER_2013833.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SANDRA V. WASHINGTON ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -14-0172 -I-3
DATE: March 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna L. Drake , Markham, Illinois, for the appellant.
Maryl R. Rosen , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction, finding, among other things, that she
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
failed to prove that the agency arbitrarily and capriciously denied her restoration
as a former employee who had partially recove red from a compensable injury.
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 pr ocedures or 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. Titl e 5 of the Code 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 a ny basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED
(1) to clarify the basis for the conclusion that the Board lacks jurisdiction over
this matter and (2) to vacat e the administrative judge’s analysis regarding the
appellant’s discrimination claim, we AFFIRM the initial decision .
BACKGROUND
¶2 The appellant was a City Carrier at the Melrose Park, Illinois Post Office .
Washington v. U.S. Postal Service , MSPB Docket No. CH-0752 -14-0172 -I-1,
Initial Appeal File (IAF), Tab 12, pt. 1 at 112. She suffered a compensable injury
on or about December 11, 2010, and she was continuously absent from duty for
more than 1 year and on the periodic rolls of the Office of Workers’
Comp ensation Programs (OWCP). Id., pt. 2 at 93. In March 2012, the agency
notified her that, because she had continued in this status for more than
12 months, it was processing an action to separate her based on her inability to
perform. Id. at 104. On April 18, 2012, the appellant ’s doctor examined her and
3
completed paperwork clearing her to return to duty within certain restrictions.
IAF, Tab 1 at 6 , Tab 12, pt. 2 at 96 -99. At the time, the agency was unable to
find suitable work within her medica l restrictions and separat ed her from service
effective May 24, 2012, for inability to perform the essential function s of her
position, pursuant to section 545.9 of the agency’s Employee and Labor Relations
Manual (ELM). IAF, Tab 12, pt. 1 at 110, 112, pt . 2 at 5 -44, 93 -94. After the
separation, the appellant submitted additional medical information, and the
agency conducted search es for work within her medical restrictions in July 2012 .
IAF, Tab 12, pt. 1 at 47, 49, 51 -90.
¶3 By letter dated October 4, 201 2, the appellant requested reinstatement with
lifting restrictions , claiming that her physician had last examined her in
August 2012 . Id. at 45. By letter dated October 23, 2012, the agency
acknowledged this latest request for reinstatement and instructe d her to submit
current medical documentation and/or a completed OWCP Duty Status Form
addressing all of her physical limitations so that the agency c ould properly assess
if work could be provided. Id. at 43. The record reflects that, by letter dated
January 30, 2013, a Rehabilitation Spec ialist designated by OWCP sent an
official at the Postal Service’s Central District the results of a physical capacities
evaluation conducted in November 2012. IAF, Tab 26, pt. 2 at 12 -14
(Appellant’s Exhibit s (Exs.) D4-D6); Hearing Transcript ( HT) at 200 -04
(testimony of the appellant). The Rehabilitation Specialist’s letter asked the
agency to extend a suitable job offer to the appellant or advise of the inability to
do so. IAF, Tab 26, pt. 2 at 12 (Appellant’ s Ex. D4). The record also contains a
second letter , dated February 11, 2013, from the Rehabilitation Specialist to
another official at the Postal Service’s Central District , asking whether a suitable
job offer could be made for the appellant. Id. at 15 (Appellant’s Ex. D7).
Enclosed were a Work Capacity Evaluation Form and a Duty Status Form
describing the appellant’s medical restrictions, apparently executed by a
4
physician on January 10, 2013, and July 16, 2012, respectively. Id. at 16 -17
(Appe llant’s Exs. D8-D9).
¶4 On De cember 13, 2013, the appellant filed this appeal, alleging that the
agency had failed to restore her to duty as a partially recovered employee under
5 C.F.R. part 353, following her request for restoration to duty on April 18, 201 2.
IAF, Tab 1 at 3 , 6. The appellant later stipulated that she was withdrawing the
issue of her April 18, 2012 pre -separation request for restoration and basing her
appeal only on her request for restoration made post-separation on October 4,
2012. HT at 5-6 (statement s of the appellant and her representative) . After the
appeal was filed, the appellant provided multiple updates on her medical
condition, and the agency produced evidence that it conducted multiple searches
for available work within her medical restric tions within a 50 -mile radius of her
home office , including searches o n January 10, September 12 , September 24,
October 24, and October 28, 2014. IAF, Tab 25 (Agency Ex. 1), Tab 36 (Agency
Exs. 16-19).3
¶5 After a hearing, t he administrative j udge issued an initial decision that
found that the appellant failed to establish the Board’s jurisdic tion and dismissed
the appeal. Washington v. U.S. Postal Service , MSPB Docket No. CH -0752 -14-
0172 -I-3, Second Refiled Appeal File, Tab 12, Initial Decisi on (ID) at 1-2, 16-17.
The administrative judge’s conclusion was based largely on her finding s that the
appellant had failed to prove by preponderant evidence that the agency had acted
arbitrarily and capriciously in denying her restoration after October 4, 2012 . ID
at 16 -17. The administrative judge also found that the a gency had performed
adequate searches for available work within her medical restrictions and local
commuting area, thus satisfying its obligations . Id.
3 Agency Exhibit 19 appears to have been erroneousl y marked as Agency Exhibit 29.
IAF, Tab 36.
5
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed an opposition to which the appellant has
replied. PFR File, Tabs 5 -6.
ANALYSIS
The appellant has failed to make a nonfrivolous allegation that she has fully
recovered from compensable injury.
¶7 Pursuant to the Federal Employees’ Compensation Act and the
implementing regulations of the Office of Personnel Management (OPM) at
5 C.F.R. part 353, a Federal employee who suffers a compensable injury has
certain rights to be restored to her previous position or a comparable position.
Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 9 (2016). Under OPM’ s
regulations, restoration rights differ depending on the timing and extent of the
employee’s recovery, including whether she has fully recovered, partially
recovered, or is physically disqualified. Id.; 5 C.F.R. § 353.301 . On review, the
appellant asserts that the administrative judge’s “primary error” was applying the
wrong law. PFR File, Tab 1 at 5 -6. In particular, she claims that the
administrative judge should have analyzed wheth er the agency fulfilled its
obligations under authority such as 5 U.S.C. § 8151 (b)(2) , 5 C.F.R. § 330.204 ,
and the ELM § 546.131 . Id. at 4-10.
¶8 We find that t hese authoriti es could only be relevant if the appellant had
fully recovered or overcome a compensable injury. 5 U.S.C. § 8151 (b)(2) ;
5 C.F.R. §§ 353.301 (a), 353.3 04(b); IAF, Tab 12, pt. 2 at 83; see 5 C.F.R.
§ 353.102 (providing that fully recovered “means compensation pay ments have
been terminated on the basis that the employee is able to perform all other duties
of the position he or she left or an equivalent one”). We find that the appellant
has not alleged any facts that could establish that she fully recovered or overcame
her c ompensable injuries. To the contrary, she testifie d that she continued to
have medical restrictions on the type of work she could perform. HT at 196 -98
(testimony of the appellant). Thus, to the extent that the appellant’s petition for
6
review refers to the agency’s restoration obl igations toward fully recovered
employees or former employees, we find her arguments do not demonstrate any
material error in the initial decision.
We agree with the administrative judge’s conclusion that the appellant failed to
establish that the agency arbitrarily and capriciously denied her restoration rights ;
however, we modify the initial decision to clarify the applicable legal standard.
¶9 The appellant contends that the agency did not perform an adequate search
for available work for her. PFR File, Tab 1 at 9. To this end, she argues that the
type of work the agency searched for was incorrect, the agency failed to consider
vacancies open to the public, including in the excepted service, and the agency
has had “an overwhelming number of job opportunities” for her since 2012. Id.
at 9-11. She also alleges that the agency failed to comport with ELM
§ 546.142(b) and an internal handbook . Id. at 8, 11.
¶10 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
over a restoration appeal as a partially recovered individual, the appellant must
prove the following by preponderant evidence:4 (1) she was absent from h er
position due to a compensable injury; (2) she recovered sufficiently to return to
duty on a part -time basis or to return to work in a position with less demanding
4 Because the appellant filed her Board appeal prior to March 30, 2015, we apply the
“preponderant evidence” standard rather than the current “nonfrivolous allegation”
standard. See Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 5 n.2 (2016)
(explaining that the Board adopted a nonfrivolous allegation s tandard for restoration
appeals by regulation effective March 30, 2015) , aff’d per curiam , 679 F. App’x 1006
(Fed. Cir. 2017 ), and overruled on other grounds by Cronin v. U.S. Postal Service ,
2022 MSPB 13, ¶ 20 n.11. Preponderant evidence is the degree of relevant evidence
that a reasonable person, consideri ng 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).
7
physical requirements t han those previously required of h er; (3) the agency
denied h er request for restoration; and (4) the denial was arbitrary and capricious.
Bledsoe , 659 F.3d at 1104; Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶ 10
(2012), overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB
13, ¶¶ 20 -21. The appellant meets the first three jurisdictional criteria ;5 thus, the
dispositive inquiry here is whether the appellant showed that the denial of h er
restoration request was arbitrary and capricious.
¶11 After the administrative judge issued her initial decision, the Board issued a
decision clarifying the fourth jurisdictional criterion in partial restoration appeals.
Cronin , 2022 MSPB 13 .6 In Cronin , the Board found that a denial of restoration
is arbitrary and capricious if —and only if —the agency failed to meet its
obligations under 5 C.F.R. § 353.301 (d). Id., ¶ 20. The Board explicitly
overruled Latham and its progeny to the extent such precedent held that a denial
of restoration may be arbitrary and capricious based on an agency’s failure to
comply with its self-imposed restoration obligations, such as those provided in
the agency’s ELM . Id. Accordingly, u nder Cronin , the Board’s sole inquiry in an
appeal alleging an arbitrary and capricious denial of restoration to a partially
recovered employee is whethe r the agency complied with its obligation under
5 C.F.R. § 353.301 (d) to search within the local commuting area for vacant
positions to which it can restore the employee and to consider h er for any such
vacancies. Id.
5 To the extent the appellant argues on review that the administrative judge erroneously
concluded that she was not “denied” restoration, we find no material error. PFR File,
Tab 1 at 14 -15. For purposes of our decision, we assume that she was denied
restoration, but, for the reasons set forth in this order, we find that she failed to
establish that the agency acted arbitrarily and capriciously.
6 Because the Board issued Cronin while this appeal was pending, it is given retroactive
effect and applies to this appeal. Desjardin v. U.S. Postal Service , 2023 MSPB 6 ,
¶ 18 n.8.
8
¶12 Applying that standard here, we find that the appellant has failed to show
by preponderant evidence that the agency’s denial of restoration was arbitrary and
capricious . Indeed, the appellant’s unsupported, conclusory assertions that the
agency failed to sufficiently search for a vacant position , PFR File, Tab 1 at 9-11,
do not provide a basis to disturb the initial decision , see Clark v. U.S. Postal
Service , 123 M.S.P.R. 466 , ¶ 8 (2016) (explaining that vague, conclusory, or
unsupported allegations do not satisfy the less stringent “nonfrivolous allegation ”
standard) , aff’d per curiam , 679 F. App ’x 1006 (Fed. Cir. 2017 ), and overruled
on other grounds by Cronin , 2022 MSPB 13, ¶ 20 n.11 .7 As set forth in the initial
decision, the appellant did not (1) identify a vacant funded position that she could
perform within her restrictions; (2) demonstrate that the agency did not search the
comm uting area for vacant positions; (3) produce evidence that the agency’s
claim that there were no vacant positions was untrue; or (4) identify any available
work within her medical restrictions. ID at 16 -17. To the extent the appellant
contend s that the agency violated either its ELM or an internal handbook , PFR
File, Tab 1 at 8, 11, her contentions are necessarily unavailing insofar as the
agency’s failure to comply with its self-imposed obligations cannot itself
constitute a violation of 5 C.F.R. § 353.301 (d) such that a resulting denial of
restoration would be rendered arbitrary and capricio us for purposes of
establishing Board jurisdiction under 5 C.F.R. § 353.304 (c), see Cronin ,
2022 MSPB 13 , ¶ 20. Thus, a different outcome is not warranted.
7 The record shows that the agency’s first searches for avail able work after the
appellant’s October 4, 2012 request for reinstatem ent were conducted on or about
January 10 , 2014, based on medical information dated January 23, 2013. IAF, Tab 25
(Agency Ex. 1) . A delay in responding to a restoration request may in some
circumstances be considere d an arbitrary and capricious denial of restoration. See, e.g. ,
Johnson v. U.S. Postal Service , 114 M.S.P.R. 374 , ¶ 12 (2010). How ever, the appellant
has not raised any such argument on review, and it does not appear that the record
below was developed concerning such a claim. Accordingly, we do not reach any such
issue in this d ecision. See 5 C.F.R. § 1201.115 (“The Board normally will consider
only issues raised in a timely filed petition or cross petition for review.”) .
9
The administrative judge applied the correct burden of proof.
¶13 The appell ant argues that the administrative judge mis assigned the burden
of proof when she stated that the appellant failed to identify a vacant funded
position that she could perform within her medical restrictions, show by
preponderant evidence that the agency fa iled to search the entire commuting area
for vacant positions, produce preponderant evidence that the agency’s claim that
there were no vacant positions available was in some way untrue, or alternatively
that the agency had work available within her medica l restrictions. PFR File,
Tab 1 at 11 -12; ID at 16 -17. We find, however, that the appellant —and not the
agency —properly bore the burden of proof on this issue. See Bledsoe , 659 F.3d
at 11 05 (upholding the dismissal of a partial recovery restoration appeal for lack
of jurisdiction, when, among other things, the individual “did not identify any
vacant position which was available within her commuting area and which she
was able to perform”).
We vacate the administrative judge’s analysis of the appellant’s disability
discrimination claim .
¶14 The appellant reasserts that the agency denied her rights under the
Rehabilitation Act. PFR File, Tab 1 at 13 -14, Tab 6 at 6, 11 . To this end, she
avers that the agency “regarded” her a s disabled and should have reinstated her to
a positi on. PFR File, Tab 1 at 13 -14. In her initial decision, the administrative
judge stated that discriminatory or retaliatory action could establish arbit rariness
or capricio usness as relevant to the juris dictional issue , ID at 4; however, she
concluded the appellant had not shown that the agency’s alleged action was
arbitrary and capricious based on such grounds, ID at 17 .
¶15 In Cronin , the Board clarified that claims of prohibited discrimination or
reprisa l cannot serve as an “alternative means” of showing that a denial of
restoration was arbitrary and capricious. Cronin , 2022 MSP B 13 , ¶ 21. The
Board acknowledged that an agency’s failure to comply with section 353.301(d)
may well be the result of prohibited discrimination or reprisal for protected
10
activity; however, whether that is so is immaterial to the question of whether a
denial of restoration is arbitrary and capricious for purposes of section
353.304(c). Id. Thus , we vacate the administrative judge’s analysis of the
appellant’s claim of disability discrimination insofar as it is not material to the
jurisdictional issue .8 ID at 4 -8, 17.
The appellant’s assertions regarding bias do not warrant a different outcome.
¶16 Finally, t he appellant asserts that the administrative judge showed bias and
abused her discretion by not allowing her to base her appeal on her April 18, 2012
attempt to return to work and subsequent separation . PFR File, Tab 1 at 6 , 14.
The appellant also asserts that the administrative judge showed bias by giving
more weight to agency witnesses’ testimony than she gave to her own testimony,
and by commenting to the appellant’s representative that an agency witness
“seem[ed] sincere” when she testified that the agency had not denied the
appellant reemployment. Id. at 14.
¶17 In making a claim of bias or prejudice against an administrative judge, a
party must overc ome the presumption of honesty and integrity that accompanies
administrative adjudicators. Scoggins v. Department of the Army , 123 M.S.P.R.
592, ¶ 19 (2016) (citing Oliver v. Department of Transportation , 1 M.S.P.R. 382 ,
386 (1980)). Broad, general allegations of bias a re insufficient to rebut the
presumption of honesty and integrity. Hawes v. Office of Personnel Management ,
122 M.S.P.R. 341 , ¶ 4 (2015). Judicial comments that are critical or disapproving
of, or even hostile to, counsel, the parties, or their cases made during the course
of a hearing ordinarily do not support a finding of bias or partiality. Smets v.
8 In the absence of an otherwise appealable action, the Board lacks jurisdiction to
consid er the appellant’s allegation of disability discrimination as an independent claim .
See Cronin , 2022 MSPB 13 , ¶ 22; see also Wren v. Department of the Army , 2 M.S.P.R.
1, 2 (1980) (holding that p rohibited personnel practices under 5 U.S.C. § 2302 (b) are
not an independent source of Board jurisdiction ), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir .
1982) .
11
Department of the Navy , 117 M.S.P.R. 164 , ¶ 15 (2011) (citing Liteky v. United
States , 510 U.S. 540 , 555 (1994)) , aff’d per curiam , 498 F. App’x 1 (Fed. Cir.
2012) . The mere fact that the administrative judge rules against a party likewise
does not establish bias. Thompson v. Department of the Army , 122 M.S.P.R. 372 ,
¶ 29 (2015). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudi cation only if her comments or actions evidence
“a deep -seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
Cir. 2002) (quoting Liteky , 510 U.S. at 555).
¶18 As for the appellant’s argument regarding her April 18, 2012 attempt to
return to work, she a ssert ed that the administrative judge failed to include in the
initial decision any mention of he r ruling against the appellant regarding
inclusion of the administrative separation that followed her attempt to return to
work . PFR File, Tab 1 at 6 , Tab 6 at 11 -12. The record shows , however, that the
appeal was initially docketed as a chapter 75 remov al appeal on December 13,
2013 . IAF, Tab 2 . A s such, it appear s to have been untimely filed , as her
administrative separation was effective May 24, 2012 . IAF, Tab 12, pt. 1 at 112 .
The administrative judge issued an Order on Timeliness. IAF, Tab 4. In
responding to th at order, the appellant explained the nature of her appeal, IAF,
Tab 6, and the administrative judge subsequently process ed it as a timely filed
restoration claim , Washington v. U.S. Postal Service , MSPB Docket No. CH-
0752 -14-0172 -I-2, R efiled Appeal File, Tab 4 . The appellant has not shown that
the administrative judge abused her discretion by omitting this procedural
explanation from the initial decision or that she demonstrated bias . In any event,
the appellant herself stipulated tha t the October 4, 2012 request for restoration
was the only issue before the Board . HT at 5 -6 (statements of the appellant and
her representative) .
¶19 As for the administrative judge’s creditin g of other witnesses’ testimony
over that of the appellant, the a dministrative judge’s role is as the Board’s
12
delegated finder of fact, which includes making credibility findings regarding
witness testimony. See Haebe v. Department of Justice , 288 F.3d 1288 ,
1298 -1302 (Fed. Cir. 2002) . We have examined the record and find no
improprieties, including the administrative judge’s alleged comment about the
testimony of one agency witness. The purported improprieties taken individually
or as a whole do not overcome the presumption of honesty and integrity that
accompanies administrative adjudicators or evidence a deep -seated favoritism
toward the agency.
¶20 Accordingly, having considered the appel lant’s arguments on review, we
affirm as modified the initial decision , still dismissing the appeal for lack of
jurisdiction .
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 o f
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal right s, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdict ion. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismi ssal of your case by your
chosen forum.
9 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to rev iew your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Fede ral Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
14
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 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
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:
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
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Feder al Circuit or any court of appeals of
competent jurisdiction.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).
10 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.
16
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/p robono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation i n a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cour t_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WASHINGTON_SANDRA_V_CH_0752_14_0172_I_3_FINAL_ORDER_2013833.pdf | 2023-03-22 | null | CH-0752 | NP |
3,374 | https://www.mspb.gov/decisions/nonprecedential/DAVIDSON_RICHARD_A_DA_0752_15_0013_I_3_FINAL_ORDER_2013959.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD A. DAVIDSON,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -15-0013 -I-3
DATE: March 22, 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 Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial deci sion, 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
significantl y to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential d ecision issued as an Opinion and Order 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 in cluded 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 stat ute
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
discr etion, 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 g ranting 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).
BACKGR OUND
¶2 The appellant was formerly employed by the agency as an Assistant Special
Agent in Charge (ASAC) with the San Antonio d ivision of the Federal Bureau of
Investigation (FBI) . Davidson v. Department of Justice , MSPB Docket No.
DA-0752 -15-0013 -I-3, Appea l File (I -3 AF), Tab 15 at 296 . On May 22, 2014,
the agency proposed his removal based on three charges : misuse of position,
interference with an Office of Inspector General (OIG) investigation , and lack of
candor . Id. at 66 -76. On August 22, 2014, the agency sustained the charges and
removed the appellant effective that same day. Id. at 39 -55. The appellant filed a
Board appeal disputing the charges. Davidson v. Department of Justice , MSPB
Docket No . DA-0752 -15-0013 -I-1, Initial Appeal File (IAF), Tab 2.3 After
holding a hearing, the administrative judge issued an initial decision, sustaining
the appellant’s removal. I-3 AF , Tab 31, Initial Decision (ID). The
3 The appeal was dismissed without prejudice on two prior occasions, pending the
outcome of the appellant’s case before the agency’s disc iplinary review board. IAF,
Tab 7; Davidson v. Department of Justice , MSPB Docket No. DA-0752 -15-0013 -I-2,
Appeal File, Tab 5.
3
administrative judge found that the agency proved all three of its charges and that
the p enalty of re moval was reasonable. ID at 3 -21.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative j udge correctly found that the agency proved its charge of
misuse of posit ion.
¶4 In this charge, the agency alleged that the appellant misused his authority as
an ASAC “to ensure two FBI employees provided favorable recommendations to
personally benefit anoth er FBI employee, in violation of FBI Offense Code 2.8.”
I-3 AF , Tab 15 at 66. In particular, the agency alleged that the appe llant told two
special agents, Special Agent 1 ( SA1 ) and Special Agent 2 ( SA2 ), what they
should personally say about another spe cial agent, Special Agent 3 ( SA3 ), if
conta cted to provide a reference for SA3’s potential employment at a bank. Id.
at 69. At the time , SA3 was facing proposed disciplinary action, and, according
to the appellant, SA3 had contacted him, expressing conce rn that SA1 and SA2
might be contacted as references and might tell the bank that SA3 had been fired.
Id. at 44; ID at 6 -7. The appellant then met with SA1 and SA2 in his office . ID
at 7. Another official, Supervisory S pecial Agent 1 (SSA1 ), also was present .4
Id.
¶5 The administrative judge credited sworn statements of SA1 and SA2 that ,
during the meeting , the appellant ordered them to tell the bank that SA3 was a
“good agent” and “we hope he does not leave” and that any deviation from thos e
statements w ould result in the agents being called back to the appellant’s office to
explain their actions. ID at 5, 8. The administrative judge further credited SA1 ’s
and SA2’s statements that , after sensing their discomfort, the appellant stated that
4 SSA1 was SA1 ’s and SA2’s supervisor. ID at 7. The appellant was SSA1’s direct
supervisor and SA1 ’s and SA2’s second -level su pervisor. ID at 8, 13.
4
they could ot herwise state that “management believes [SA3] was a good agent
and that management hoped he did not leave.” Id. The administrative judge
found that SA1 ’s and SA2’s understanding of the appellant’s instruction s as an
order was reasonable given the decidin g official ’s testimony that the agency
adheres to strict hierarchical standards and that the appellant testified that he
function ed essentially as a Special Agent in Charge. ID at 8. Thus, the
administrative judge did not credit the appellant’s claim tha t SA1 and SA2 were
under no obligation to comply with his directions. Id. She similarly did not
credit the appellant’s explanation that his intent during the meetin g was to protect
the agency, SA1 , and SA2 from liability in the event SA1 or SA2 disclosed to the
bank informat ion protected by the Privacy Act. ID at 9. Instead, she found that
the appell ant’s intent to benefit SA3 was evidenced both by his statements during
the meeting and by the fact that he himself gave SA3 a favorable reference. Id.
¶6 On review, the appellant contends that the evidence does not reflect that he
unequivocally ordered SA1 and SA2 to provide a favorable recommendation
because “equivocality permeated the entire dialogue” and it culminated in
guidance that SA1 and SA2 refer any inquiries to management. PFR File, Tab 1
at 8. He further reiterates that his intent was to prevent unauthorized disclosure
of information protected by the Privacy Act to third parties by employees of the
agency. Id. at 8-9. However, the administrative judge considered and rejected
such argument s. ID at 9. The appellant also asserts that the administrative judge
erred in relying on SA1 ’s and SA2’s affidavits, which he contends were
incomplete and unreliable. PFR File, Tab 1 at 9. We find that the ap pellant’s
arguments 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 whe n she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); see also Broughto n v. Department of
Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
5
The administrative judge correctly found that the agency proved its charge that
the appellant interfered with an OIG investigation.
¶7 The agency alleged that the appellant violated FBI Offense Code 2.11 when ,
after speaking with the OIG, he went to SSA1, a subordinate and OIG witness,
and had him prepare a statement regarding the appellant’s meeting with SA1 and
SA2. I-3 AF , Tab 15 at 70. SSA1 prepared a statement a nd gave it to the
appellant, who faxed it to the OIG , prior to both of their OIG interviews. Id.
at 48. The agency alleged that such actions implied undue influence given the
appellant’s status as SSA1’s supervisor and awareness that concerns about his
actions during the meeting with SA1 and SA2 had been raised outside of his
division. Id. at 71 .
¶8 FBI Offense C ode 2.11 prohibits an employee f rom “[t]aking any action to
influence, intimidate, impede or otherwise obstruct an administrative matter.” I-3
AF, Tab 15 at 70 . The administrative judge found that, for purposes of this
section, the agency was not required to prove that the appellant’s actions in fact
influenced or obstructed the investigation, but only that they were taken for the
purpose of doing so .5 ID at 12.
¶9 The administrative judge found that , when the appellant requested that
SSA1 provide a statement to him , he was aware that his conduct during the
meeting with SA1 and SA2 was a t issue , SA1 had raised a complaint about the
appellant’s conduct outside of the office, he had “lost control” of the situation ,
and “knew [he] didn’t handle it right .”6 ID at 12 -13. Thus, the administrat ive
5 In so finding, the administrative judge relied upon Parkinson v. Department of Justice ,
815 F.3d 757 , 765 (Fed. Cir. 201 6), aff’d in relevant part and rev’d in part by 874 F.3d
710 (Fed. Cir. 2017) (en banc). This interpretation is consistent with the agency’s
interpretation , I-3 AF , Tab 15 at 46, and the appellant also does no t contend that the
agency was required to prove that he actually interfered with or obstructed the OIG
investigation.
6 Although the appellant testified that he was not aware of the OIG invest igation at the
time he requested that SSA1 prepare a memorandum, ID at 11 -12, the record reflects
that the OIG complaint was filed on September 13, 2013, SSA1’s memorandum
prepared at the request of the appellant is dated September 13, 2013, and in h is affidavit
6
judge found that, under the circumstances, the appellant’s conduct was an effort
to improperly influence SSA1’s account of the meeting. ID at 13 . She further
found that, although SSA1 confirmed that the appellant did not tell him what to
write in his memorandum , it is impossible to know if SSA1 would have said
something more or different if he had been questioned by the OIG without having
first prepared a statement fo r the appellant, his supervisor . Id. Additionally, the
administrative judge found t hat the appellant improperly gained access to SSA1’s
statement by having him return it to the appellant rather than having SSA1
preserve it in his own files. ID at 13 -14.
¶10 On review, the appellant contends that the administrative judge erred in
sustainin g this charge because the evidence fails to demonstrate that his behavior
was calculated to act ually obstruct the investigation . PFR File, Tab 1 at 13 . The
appellant also contends that the administrative judge erred in failing to make a
finding as to whe ther his actions in attempting to influence the investigation were
improper . Id. at 15 -16. In support of his argument, the appellant relies on
Parkinson v. Department of Justice , 815 F.3d 757 , 765 (Fed. Cir. 2016), aff’d in
relevant part and rev’d in part by 874 F.3d 710 (Fed. Cir. 2017) ( en banc) . In
Parkinson , the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
held that a showing of impropriety was an implicit requirement to establish a
violation of FBI Offense Code 2.11 . Id. We fail to see how, under the
circumstances presented here, the appellant’s act of soliciting and obtaining
SSA1’s statement prior to the OIG investigators could be construed as anything
other than improper influence .
¶11 To the extent t he appellant also contends that the agency was required to
show that his subjective purpose in requesting the memorandum from SSA1 was
prepared as part of the OIG investigation, SSA1 indicated that the appellant requested
that he write a memorandum on September 13, 2013 , after the appellant spoke to the
OIG. I-3 AF , Tab 15 at 205, 226 -28. The administrative judge, however, did no t make
any credibility findings concerning whether the appellant was aware of the OIG
investigation when he requested SSA1’s statement.
7
immoral, depraved, or evil as set forth in Parkinson and Arthur Andersen LLP v.
United States , 554 U.S . 696 , 705 (2005) , PFR File, Tab 1 at 16 -17, we find that
such a showing is not required t o establish a violation of FBI Offense C ode 2.11.
We do not read the Federal Circuit’s decision in Parkinson as holding that FBI
Offense Code 2.11 requires a showing that the attempted influence was immoral,
depraved, or evil. Parkinson cited to the Supreme Court’s decision in Arthur
Andersen , in su pport of its finding that FBI Offense Code 2.11 requires
impropriety in the attempted influ ence, not that the specific requirements for
criminal obstruction under 18 U.S.C. § 1512 , as set forth in Andersen , are
applicable to FBI Offense Code 2.11 . See Parkinson , 815 F.3d at 765 n.3.
The administrative judge properly sustained the lack of candor charge.
¶12 The agency charged the appellant with a lack of candor based on his
statements made under oath during the OIG investigation in which he stated that
his statements to SA1 and SA2 were not made to benefit SA3 in any way but to
warn SA1 and SA2 to prevent them from making unauthorized disclosures and to
protect the FBI from civil liabilities. I-3 AF , Tab 15 at 48. The agency also
charged him with falsely stating that “at no time [were you] instructing them to
make a recommendation, but simply to narrow their comments if contacted by
[the b ank]. ” Id. Finally, the agency charged the appellant with lack of candor
based on his statement under oath that prior to providing a reference for SA3 h e
“coordinate d several times” with the former Special Agent in Charge ( SAC ) about
SA3 in an effort to falsely convey to investigators that he had prior SAC approval
for his conduct. Id. at 50.
¶13 The administrative judge found that the appellant’s statements that he d id
not intend to benefit SA3, had never taken any actions to benefit SA3 or his
employment with the bank, and acted only to protect the interests of the FBI
lacked candor based on her prior findings that the appellant intended to benefit
SA3 when he instructed SA1 and SA2 to provide a favorable reference for SA3 .
ID at 16. She further found the appellant’s comment, “[a] t no time was I
8
instructing [SA1 and SA2] to make a recommendation, but simply to narrow their
comments if contacted by [the ba nk],” to lack candor because it was at odds with
the sworn affidavits of SA1 and SA2, which she credited over the appellant’s
testimony. ID at 16 -17. Finally, she found that the appellant lacked candor when
he stated under oath that he had coordinated wit h the SAC before he spoke to the
bank about SA3 based on a sworn affidavit from the SAC that the appellant
contacted him after the appellant spoke with the bank. ID at 17. She fou nd that
the appellant’s statement implied that he discussed with the SAC providing a
reference before one was made, when in fact, the SAC’s statement denied that
such a discussion occurred. ID at 18. The appellant did not testify regarding his
conversation with the SAC, and the administrative judge credited the SAC’s
affidavit over the appellant’s. Id.
¶14 On review, the appellant disputes the administrative judge ’s findings
concerning this charge. He contends that she confused knowledge and intent and
applied the wrong standard when a lack of candor requires “proof that at the ti me
Appellant characterized his intent in his statement . . . he in fact knew that his
characterization of his intent was inaccurate.” PFR File, Tab 1 at 9 -13. A lack of
candor charge requires proof that the appellant knowingly gave incorrect or
incomplet e information. Fargnoli v. Department of Commerce , 123 M.S.P.R.
330, ¶ 17 (2016). However, l ack of candor is a broad and flexi ble concept
“whose contours and elements depend on the particular context and conduct
involved.” Ludlum v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir.
2002).
¶15 We agree with the administrative judge that the appellant lacked candor in
his statements. The administrative judge did not credit the appellant’s claim that
his actions were only an effort to protect the agency, and SA1 and SA2 , from
liability. ID at 9. She found that, if the appellant intended only to protect the
FBI, SA1 , and SA2 from any liability , there would have been no need for him to
instruct SA1 and SA2 to tell the bank that SA3 was a “good agent,” “we hope he
9
does not l eave ,” or that “management believes [SA3] was a good agent and that
management hoped he did not leave.” ID at 9. Thus, we agree that the appellant
knowingly gave incorrect information concerning the reasons for his statements
during the meeting. Further , the appellant’s statement that “I have never taken
any actions to benefit [SA3] or his employment with the bank ” is plainly false
because , as noted in his affidavit, t he appellant provided a positive reference to
the bank on behalf of SA3. I-3 AF , Tab 1 5 at 276, 297 . We also agree that the
appellant’s statement that he coordinated with the SAC several times prior to his
contact with the ba nk was mislead ing and suggest s that he had approval for his
actions. Accordingly, we find that the administrative j udge properly sustained the
charge.
The administrative judge properly found that the penalty of removal was within
the tolerable limits of reasonable ness .
¶16 Regarding the appropriateness of the penalty, t he appellant argues that a
30-day suspension is the maximum reasonable penalty , given his contentions that
the agency failed to prove its charges of lack of candor and interference with an
investigation. PFR File, Tab 1 at 4. However, as set forth above, we affirm the
administrative judge’s findings that the agency proved all three of its charges.
¶17 In determining an appropriate penalty, an agency must review relevant
mitigating factors, also known as the Douglas factors pursuant to Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981). The Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficie ncy. See Davis v. U.S. Postal Service ,
120 M.S.P.R. 457 , ¶ 6 (2013). Thus, the Board will modify a penalty only when
it finds tha t the agency failed to weigh the relevant factors or that the penalty the
agency imposed clearly exceeded the bounds of reasonableness. Id.
¶18 Here, t he administrative judge deferred to the agency’s decision to remove
the appellant after finding that the dec iding official considered the relevant
Douglas factors, including the nature and seriousness of the offense, the
10
appellant’s supervisory position, his prior discipline for two prior instances of
misusing his official position, his potential for rehabilitat ion, his length of
service, and his favorable performance ratings. ID at 20 . We agree that
deference was appropriate here. In arguing otherwise, the appellant relies on
Portner v. Department of Justice , 119 M.S.P.R. 365 (2013), overruled in part by
Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 15, 17 . PFR File, Tab 1 at 6 -7.
Although the appellant asserts that the circumstances here are similar to those in
Portner , 119 M.S.P.R. 365 , in which the Board mitigated the appellant’s removal
to a 45 -day suspension, we find the facts of Portner to be distinguishable. For
example, Portner invo lved different charges of unauthorized use of a Government
vehicle and making false statements. See Singh , 2022 MSPB 15 , ¶¶ 15, 1 7
(overruling Portner to the extent the Board held that the disparate penalty
analysis should extend beyond the same or similar offense ). Moreover, unlike the
present case, in Portner , the Board found that the deciding official failed to weigh
all of the Douglas factors , including the appellant’s potential for rehabilitation.
Under the circumstances presented here, w e agree with the administrative judge
that the penalty of removal is within the tolerable limits of reasonableness.
¶19 Accordingly, we affirm th e initial decision.
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
7 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.
11
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision , you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read car efully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit y our petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repr esentation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circu it. The
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your d iscrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link belo w:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination cl aims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the 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 t he
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 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.
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 Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | DAVIDSON_RICHARD_A_DA_0752_15_0013_I_3_FINAL_ORDER_2013959.pdf | 2023-03-22 | null | DA-0752 | NP |
3,375 | https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_6_ORDER_ON_STAY_EXTENSION_REQUEST_2013337.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. ZERINA SPALD ING,
Petitioner,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CB-1208 -22-0016 -U-6
DATE: March 21, 2023
THIS STAY ORDER IS N ONPRECEDENTIAL1
Julie R. Figueira , Esquire, Malvina Winston , Esquire, and Paul David
Metcalf, Jr. , Esquire, Washington, D.C., for the petitioner.
Corlie McCormick, Jr. , Esquire, Crofton, Maryland, for the relator .
Ralph C. Conte , Washington, D.C., for the agency .
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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).
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(A), the Office of Special Counsel (OSC)
requests an extension of the previously granted stay of the proposed removal
issued by the Department of the Treasury (agency) while OSC completes its
investigation and legal review of the matter and determines whether to seek
corrective action . For the reasons discussed below, the stay is exte nded up to and
including May 8, 2023 .
BACKGROUND
¶2 On July 28, 2022, Member Limon granted OSC’s request for a 45 -day stay
of the proposed removal of Ms. Spalding based on a charge of misconduct.
Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB -1208 -22-0016 -U-1, Stay Request File (U -1 SRF), Order on Stay
Request (July 28, 2022) (U-1 Order on Stay Request) . The initial stay was
granted to permit OSC to conduct an investigation into whether the agency’s
proposal to rem ove Ms. Spalding was the result of a prohibited personnel practice
under 5 U.S.C. § 2302 (b)(1)(A). Id., ¶ 6. OSC subsequently requested, and the
Board granted, multiple extensions of the stay.2
2 By order dated September 9, 2022, the Board extended the stay through November 9,
2022. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB -1208 -22-0016 -U-2, Stay Request File (U-2 SRF), Order on Stay
Extension Request (Sept. 9, 2022) (U-2 Order on Stay Extension Request) . By order
dated November 9, 2022, the Board extended the stay through January 8, 2023. Special
Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No.
CB-1208 -22-0016 -U-3, Stay Request File (U -3 SRF), Order on Stay Extension Request
(Nov. 9, 2022) (U-3 Order on Stay Extension Request) . By order dated December 27,
2022, the Board extended the stay through January 23, 2023. Special Couns el ex rel.
Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -
U-4, Stay Request File (U -4 SRF), Order on Stay Extension Request (Dec. 27, 2022).
By order dated January 23, 2023 , the Board extended the stay through March 24, 202 3.
Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket
No. CB -1208 -22-0016 -U-5, Stay Request File (U -5 SRF), Order on Stay Extension
Request ( Jan. 23, 2023 ) (U-5 Order on Stay Extension Request) . Although the agency
did not oppose one of the extension requests, it opposed the others and the initial stay
¶3 The current stay order is in effect through March 24, 2023 . Special Counsel
ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No.
CB-1208 -22-0016 -U-5, Stay Request File (U -5 SRF), Order on Stay Extension
Request, ¶ 14 (Jan. 23, 2023) (U-5 Order on Stay Extension Request) . On
March 9, 2023, OSC filed a timely request to extend the stay through May 23 ,
2023. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury ,
MSPB Docket No. CB -1208 -22-0016 -U-6, Stay Request File (U -6 SRF),
Tabs 1-2.3 The agency has filed a response in opposition to OSC’s request. U -6
SRF, Tab 3.
ANALYSIS
¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation , 74 M.S.P.R. 1 55, 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. The Bo ard may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B)(i); Special Counsel ex rel.
Waddell v. Department of Justice , 105 M.S.P.R. 208 , ¶ 3 (2007).
¶5 In requesting another 60 -day extension of the existing stay, OSC asserts
that it continues to have reasonable grounds to believe that t he agency’s proposed
removal is in violation of 5 U.S.C. § 2302 (b)(1)(A) and other prohibited
request. Compare U-1 SRF, Tab 6; U -2 SRF, Tab 3; U -3 SRF, Tab 2; U-5 SRF, Tab 2,
with U-4 SRF , Tab 1.
3 OSC initially filed its request to extend the stay on March 9, 2023, U-6 SRF, Tab 1,
but it filed an errata a few days later to correct several errors in its initial submission,
U-6 SRF, Tab 2.
personnel practices.4 Broadly speaking, the underlying circumstances involve
Ms. Spalding sending anon ymous complaints of racial discrimination and other
wrongdoing to the agency; the agency conducting an investigation into the origins
of the complaints that included subpoenaing Internet Protocol addresses and
conducting fingerprint analysis; Ms. Spalding denying that she sent the
complaints during an interview with the agency’s Office of Inspector General;
and the agency then citing that allegedly false denial to propose Ms. Spalding’s
removal for lack of candor. E.g., U-1 SRF, Tab 1 at 6 -12, 21, Tab 6 at 14-31;
U-5 SRF, Tab 1 at 3 -4; U-6 SRF, Tab 2 at 6-7.
¶6 As noted in the Board’s previous order granting the initial stay in this case,
the Board has found that OSC alleged in its July 25, 2022 stay request that it has
reasonable grounds to believe that Ms. S palding’s proposed removal was the
result of a prohibited personnel practice in violation of 5 U.S.C. § 2302 (b)(1)(A).
U-1 Order on Stay Request, ¶ 6. Viewing the record in the light most favorab le to
OSC, an extension of the stay is not clearly unreasonable to allow OSC time to
continue its investigation. Special Counsel v. Small Business Administration ,
73 M.S.P.R. 12 , 13 -14 (1997). The record supporting OSC’s stay extension
request does not appear to have changed materially since th e initial stay was
granted, and so we find it appropriate to extend the stay. See Special Counsel v.
4 To the extent that OSC has identified other prohibited personnel practices that the
agency may have also violated with respect to Ms. Spalding, including 5 U.S.C.
§ 2302 (b)(8) and 5 U.S.C. § 2302 (b)(9)(C), the Board’s previous orders explained that
we granted OSC’s stay based solely on its allegations pertaining to 5 U.S.C.
§ 2302 (b)(1)(A). U-1 Order on Stay Request, ¶ 6 n.2; U -2 Order on Stay Extension
Request, ¶ 7 n.2; U -3 Order on Stay Extension Request, ¶ 9 n.2 ; U-5 Order on Stay
Extension Request, ¶ 5 n.3 . The Board has also explained that this stay is limited to
Ms. Spalding’s proposed removal, and it does not cover any other employ ees that may
now be the subject of OSC’s expanding investigation. U -2 Order on Stay Extension
Request, ¶ 10 n.4. However, we dismissed the agency’s suggestion that the focus of our
stay requires that OSC similarly focus its investigation. U -5 Order on S tay Extension
Request, ¶ 8.
Department of Veterans Affairs , 60 M.S.P.R. 40 , 41 (1993) (no change in the
record is a factor in favor of extending the stay).
¶7 A separate determination must be made on the length of a requested stay,
and the Board may extend the period of a stay for any period i t considers
appropriate. Special Counsel ex rel. Meyers v. Department of Housing and Urban
Development , 111 M.S.P.R. 48, ¶ 17 (2009); Waddell , 105 M.S.P.R. 208 , ¶ 5. As
we have repeatedly noted, the Board has recognized that it is the intent of
Congress that stays not be extended for prolonged periods of time, and Congress
has encouraged the Board to press OSC to present any correc tive action case in a
timely manner. Zerina Spalding v. Department of the Treasury , MSPB Docket
No. CB -1208 -22-0016 -U-2, Stay Request File, Order on Stay Extension Request,
¶ 10 (Sept. 9, 2022) ; Special Counsel ex rel. Zerina Spalding v. Department of the
Treasury , MSPB Docket No. CB -1208 -22-0016 -U-3, Stay Request File , Order on
Stay Extension Request, ¶ 10 (Nov. 9, 2022) ; U-5 Order on Stay Extension
Request; see Special Counsel v. Department of the Treasury , 71 M.S.P.R. 419 ,
421-22 (1996) (citing Special Counsel v. Federal Emergency Management
Agency , 44 M.S.P.R. 544 , 546 -47 (1990)).
¶8 In the Board’s most recent order on this matter, we recognized that this stay
has already been in place for a l engthy period. U -5 Order on Stay Extension
Request, ¶ 12. But we also recognized OSC ’s explanations for why its
investigation was not yet complete, many of which related to the agency’s failure
to cooperate with OSC in a timely manner . Id., ¶¶ 6, 12. A ccordingly, we
encouraged the agency to avoid any further delay of OSC’s investigation , and we
cautioned OSC that time is of the essence. Id., ¶ 13.
¶9 With its current request for yet another extension, OSC described
significant progress, but also some cont inued delays that are at least partially
attributable to the agency. U-6 SRF, Tab 2 at 9-10. For example, in a statement
made under penalty of perjury, OSC describes the following sequence of events in
the days after our January 23, 2023 Order: On Janua ry 25, OSC reminded the
agency of certain outstanding document requests. On January 30, OSC reminded
the agency again. On February 1, the agency emailed OSC requesting a call.
OSC responded within the hour, but received an out -of-office message indicati ng
that OSC’s contact with the agency would be away through February 13. On
February 13, OSC tried to reach its agency contact again. On February 14, the
agency responded, mistakenly stating that it had already produced everything. On
February 14 and 15 , the parties exchanged furth er correspondence. On
February 17, the agency provided OSC some of what it had been waiting for. On
March 1, OSC contacted the agency seeking the rest of what it had been waiting
for, at which point the agency mistakenly claimed there was nothing left to
produce. Subsequently , the agency acknowledged that it had slightly less than
15,000 emails that are responsive to OSC’s request, but it ha d yet to turn them
over as of OSC’s filing in this matter . Id. at 9-10, 21.
¶10 For its part, the agency continues to oppose OSC’s initial stay and its
current request for an extension. U -6 SRF, Tab 3. We note, though, that the
agency seems to confirm much of what OSC has asserted regarding delays. For
example, the agency presents argument and evidence that OSC began seeking
document s containing certain key words in or before November 2022 , but the
agency did not provide documents for some of those key -word searches until
March 15, 2013 . Id. at 10, 16 -34. This was 6 days after OSC filed the extension
request before us , and only 9 days before the existing stay was set to expire . Id.
at 10.
¶11 The agency’s primary disagreement with OSC stems from the scope of
OSC’s investigation and its investigatory methods. For instance, the agency
suggests that OSC’s requests for documents and witness interviews veer from the
specific matter being stayed —Ms. Spalding’s removal for lack of candor
regarding her involvement in one set of anonymous complaints of
discrimination —and into her earlier 3-day suspension , id. at 6-8, which OSC has
described as based on her lack of candor regarding her involvement in another set
of anonymous complaints of discrimination , U-1, SRF, Tab 1 at 7 -8; U-6 SRF,
Tab 2 at 6-7.
¶12 Under the circum stances, we find that a 4 5-day extension is appropriate.5
See Meyers , 111 M.S.P.R. 48, ¶ 17 (granting a request for extension of a stay, but
for less time than requested). OSC’s request for a 60 -day extension indicated that
it was nearing the “finish lin e” and that it intended to “pivot to final resolution.”
U-6 SRF, Tab 2 at 5. It further expressed a plan to complete just a “few,
remaining steps of its investigation,” and to “finalize its settlement presentation,”
which will include “a request for corr ective action.” Id. at 18. But the agency
proposed Ms. Spalding’s removal a year ago, in March of 2022. Id. at 5. W e are
therefore granting a lesser extension than OSC requested to reflect our continued
concern about the length of time that this matter has been pending . W e hope the
parties will work cooperatively during this period to bring at least this portion of
OSC’s work on Ms. Spalding’s behalf to a close.
ORDER
¶13 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 45-day extension of the stay is
GRANTED , and it is ORDERED as follows:
(1) The stay issued on July 28, 2022, is extended through and including
May 8 , 2023, on the terms a nd conditions set forth in that Orde r;
(2) The agency shall not effect any changes in Ms. Spalding’s duties or
responsibilities that are inconsistent with her salary or grade level, or
impose upon her any requirement which is not required of other
employees of comparable position, salary, or grade level;
5 The agency suggested that if we were not inclined to altogether deny OSC’s request
for a 60 -day extension, we should grant the extension for just 45 days. U -6 SRF, Tab 4
at 1-14.
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), and 5 C.F.R. § 1201.136 (b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before April 23, 2023 ; and
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before April 30, 2023 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPALDING_ZERINA_CB_1208_22_0016_U_6_ORDER_ON_STAY_EXTENSION_REQUEST_2013337.pdf | 2023-03-21 | null | CB-1208 | NP |
3,376 | https://www.mspb.gov/decisions/nonprecedential/MELTON_BRENDA_J_AT_0752_16_0591_I_1_REMAND_ORDER_2013366.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENDA J. MELTON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -16-0591 -I-1
DATE: March 21, 2023
THIS ORDER IS NONPRECEDENTIAL1
Harvey G. Orr , Riverdale, Georgia, for the appellant.
Tammie Philbrick , Atlanta, Georgia, 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
found that the agency did not viola te her reemployment priority rights following
her full recovery from a compensable injury. For the reasons discussed below,
we GRANT the appellant’s petition for review , VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an O pinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the regional office for further a djudication in accordance
with this Remand Order.
BACKGROUND
¶2 The essential undisputed facts as set forth by the administrative judge are as
follows: The appellant was formerly employed by the agency as a Parcel Post
Distribution Clerk. Initial Appeal File (IAF) , Tab 34, Initial Decision (ID) at 1.
On June 5, 2008, she suffered a work -related injury to her right toe that was
accepted by the Office of Workers ’ Compensation Programs (OWCP) as a
compensable injury. ID at 1-2. On July 16, 2013, OWCP noti fied the appellant
that it was terminating her entitlement to compensation for wage -loss benefits on
the basis that her work -related condition had resolved and she had no continuing
disability as a result of her June 5, 2008 work injury. ID at 2. Accordi ng to the
appellant, on August 1, 2013, she reported to work wearing a medical boot that
exposed her toes and submitted a return -to-work letter signed by her doctor on
June 18, 2013, indicating that she needed to wear open -toed shoes until she was
reevalua ted. ID at 6. A manager told her that there was no work for her because
she was wearing an open -toed shoe and that he would call her. Id. According to
the manager, the appellant showed up to work at some point wearing an open -toed
shoe , and he told her to put on proper footwear and go to P4. Id. The appellant
was on leave without pay (LWOP) from August 1, 2013, until April 30, 2016,
when she returned to work. ID at 2, 10.
¶3 On or about June 6, 2016, the appellant filed a Board appeal alleging that
the agency denied her restoration and/or constructively suspended her. IAF,
Tab 1, Tab 10 at 4 -6. The administrative judge found that the appellant raised
nonfrivolous allegations of Board jurisdiction over her restoration claim. IAF,
Tab 20 at 1. After ho lding a hearing, the administrative judge issued an initial
decision, finding that the appellant failed to prove that the agency violated her
reemployment priority rights as an employee who fully recovered more than
3
1 year from the date her eligibility for compensation began. ID at 5 -10. In
particular, the administrative judge found that the appellant failed to prove that
she requested restoration within 30 days after OWCP terminated her benefits on
July 16, 2013, because her August 1, 2013 request to ret urn to duty amounted to a
request for light duty , not a request for restoration. ID at 5 -7. The administrative
judge further found that the agency did not violate the appellant’s reemployment
priority rights by not placing her on a reemployment priority list because she was
never separated from the agency’s rolls, but rather remained on the rolls in a n
LWOP status. ID at 9 -10. The administrative judge did not make any findings
concerning the appellant’s claim that she was constructively suspended.
¶4 The a ppellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the agency did not violate the
appellant’s reemployment priority rights.
¶5 To establish jurisdiction over a restoration appeal as a n individual who fully
recovered more than 1 year from the date eligibility for compensation began , the
appellant must make nonfrivolous allegations that: (1) she was separated because
of a compensable injury; (2) she has fully recovered more than 1 year after the
date she became eligible for OWCP benefits; (3) she requested restoration within
30 days of the cessation of OWCP compensation; and (4) she beli eves that the
agency violated her reemployment priority rights. Nevins v. U.S. Postal Service ,
107 M.S.P.R. 595 , ¶ 11 (2008). If the appellant makes the required nonfrivolous
allegations that the agency denied her reemployment priority rights, she is
entitled to a hearing on the merits. Id. If there is a bona fide dispute as to any of
these elements, however, the appellant still bears the burden of proving them
because they are issues that implicate both jurisdiction and the merits. Id. If the
appellant establishes the Board’s jurisdiction over her reemployment priority
claim, then the agency has the burden of proving by prepond erant evidence that it
4
did not violate the appellant’s reemployment priority rights, including proof that
it did not appoint another person who could not have been appointed properly.
Id.
¶6 On review, the appellant disputes the administrative judge’s find ing that she
did not request restoration when she reported to work on August 1, 2013 , wearing
a boot and requesting to work with restric tions. PFR File, Tab 1 at 1, 4 -8. She
asserts that it was outside of the administrative judge’s authority to rule that she
was seeking light duty on August 1, 2013, because the Board is bound by
OWCP’s determination that she was fully recovered. Id. at 5-6. However, even
assuming that the appellant requested restoration when she reported to work on
August 1, 2013 , weari ng the boot, the administrative judge correctly found that
the agency did not violate her reemployment priority rights. Although the
appellant argues generally on review that the agency was obligated to place her
on a reemployment priority list, PFR File, Tab 1 at 9 -11, she does not dispute the
administrative judge’s finding that she was never separated from the agency’s
rolls and remained in a n LWOP status, able to return to her position , ID at 10.
Nor did the appellant contend that she was denied restor ation because of the
employment of another person. See 5 C.F.R. § 302.501 (explaining that an
excepted -service employee who is entitled to priority consideratio n may appeal a
violation of her restoration rights to the Board by presenting factual information
that she was denied restoration rights because of t he employment of another
person). Moreover, following OWCP’s termination of her benefits, on August 13,
2013, the agency directed t he appellant to report to her position, informed her that
any further need for limitations would be considered light duty, and provided her
with instructions as to how to request light duty. IAF, Tab 22 at 46.
Accordingly, we discern no error in the admi nistrative judge’ s ultimate finding
that the agency did not violate the appellant’s reemployment priority rights.
5
Remand is necessary to adjudicate the appellant’s constructive suspension claim.
¶7 On review, the appellant contends that the administrative jud ge erred in
failing to adjudicate her constructive suspension claim. PFR File, Tab 1 at 13-14.
The record reflects that the appellant raised a constructive suspension claim
below when she alleged that the agency failed to provide her with light duty when
she reported to work on August 1, 2013, and, thus, she was constructively
suspended from August 1, 2013 , to April 30, 2016.2 IAF, Tab 10 at 4 -6; see Bean
v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 13 (2013) (discussing va rious fact
patterns that can give rise to a constructive suspension, including the denial of an
employee’s request for light duty if the agency is obligated by policy, regulation,
or contr act to offer light -duty work). The administrative judge issued a
jurisdictional notice informing the appellant of her burden of proving that she was
constructively suspended ; however , such notice was brief and did not fully adv ise
the appellant regarding how to prove a constructive suspension claim. IAF,
Tab 13 at 1-2. The parties also submitted jurisdictional responses on this issue .
IAF, Tabs 14 -15. The record does not indicate that the appellant abandoned this
claim ; howe ver, it was not included in the administrative judge’s Order and
Summary of Prehearing Conference or addressed in the initial decision.
¶8 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credi bility, and i nclude the
administrative judge’s conclusions of law and legal reasoning, as well as the
2 A Postal Service em ployee has a right to appeal a constructive suspension to the
Board, if she (1) is a preference eligible, a management or supervisory employee, or an
employee engaged in personnel work in other than a purely nonconfidential clerical
capacity, and (2) has completed 1 year of current con tinuous service in the same or
similar positions. See 39 U.S.C. § 1005 (a)(4)(A); 5 U.S.C. § 7511 (a)(1)(B)(ii); Clark v.
U.S. Postal Se rvice , 118 M.S.P.R. 527 , ¶ 7 (2012). Because there was conflicting
evidence in the record below concerning whether the appellant was a preference
eligible, the Board issued a show cause order requiring the appellant to submit
documentation establishing that she is a preference eligible . PFR File, Tab 4. In
response, the appellant submitted documents establishing that she is a pref erence
eligible. PFR File, Tab 5 at 16, 18, 22.
6
authorities on which that reasoning rests . Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980). If any of these items is missing or
substantially incomplete, the Board will remand the appeal to the administrative
judge for modification. Miller v. U.S. Postal Service , 117 M.S.P.R. 557 , ¶ 14
(2012). Accordingly, we vacate the initial decision and remand the appeal to the
regional office to adjudica te the appellant’s constructive suspension claim. On
remand, the administrative judge shall afford the appellant proper jurisdictional
notice and may afford the parties an opportunity to further develop the record on
the constructive suspension claim to t he extent that she deems necessary to allow
full and fair adjudication of this claim. In her new initial decision, the
administrative judge shall make findings concerning the appellant’s constructive
suspension claim and also may adopt her prior findin g that the appellant failed to
prove that the agency violated her reemployment priority rights so that the
appellant will have a single decision with appropriate notice of appeal rights
addressing both of her claims. See Goldberg v. Department of Homeland
Security , 99 M.S.P.R. 660, ¶ 12 (2005).
ORDER
¶9 For the reasons discussed above, we remand this case to the regional office
for furt her adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MELTON_BRENDA_J_AT_0752_16_0591_I_1_REMAND_ORDER_2013366.pdf | 2023-03-21 | null | AT-0752 | NP |
3,377 | https://www.mspb.gov/decisions/nonprecedential/ZERFOSS_TANDI_D_DE_0714_18_0308_I_1_FINAL_ORDER_2013383.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TANDI D. ZERFOSS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
DE-0714 -18-0308 -I-1
DE-0752 -18-0211 -A-1
DATE: March 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin Krause , Esquire, Brian K. L ewis , Esquire, and Francis White ,
Esquire, Woodbury, Minnesota, for the appellant.
Chau Phan , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant ha s petitioned for review of the November 11, 2018 i nitial
decision in Zerfoss v. Department of Veterans Affairs , MSPB Docket No.
DE-0714 -18-0308 -I-1, Initial Appeal File, Tab 107, 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 . The appellant has a lso petitioned for review of the
December 19, 2018 initial decision in Zerfoss v. Department of Veterans Affairs ,
MSPB Docket No. DE -0752 -18-0211 -A-1. We now JOIN these appeals for
processing2 and, f or the reasons set forth below, we DISMISS the appeal s as
settled.
¶2 After the filing of the petition s for review, the parties submitted a document
entitled “ SETTLEMENT AND COMPROMISE AGREEMENT ” signed and dated
by the appellant on February 17, 2023 , and by the agency on February 2 3, 202 3.
PFR File, Tab 6 at 7 -8. The document provides, among other things, that the
appellant would withdraw her MSPB 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 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. Departme nt of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been ent ered 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 ente red into the record
for enforcement by the Board. PFR File, Tab 6 at 5. Accordingly, we find that
dismissing the appeal s with prejudice to refiling (i.e., the parties normally may
2 PFR File c itations herein will be to the lead case, MSPB Docket No. DE -0714 -18-
0308 -I-1.
3
not refile this appeal) is appropriate under these circumstances. In addi tion, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record in both cases for enforcement
purposes.
¶5 This is the final decision of the Merit Systems Protection Board in these
appea ls. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, th e nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available ap peal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriat e one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to th e U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for M erit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involvi ng a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal O perations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to 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 Emp loyment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whist leblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 d ate of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of a ppeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower rep risal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 th e court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an a ppeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neit her 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 | ZERFOSS_TANDI_D_DE_0714_18_0308_I_1_FINAL_ORDER_2013383.pdf | 2023-03-21 | null | S | NP |
3,378 | https://www.mspb.gov/decisions/nonprecedential/BAGAT_GREGORIO_M_SF_0831_16_0798_I_1_FINAL_ORDER_2013418.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GREGORIO M. BAGAT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0798 -I-1
DATE: March 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) . Generally, we grant petitions such as this one only in the following
circumstances: the initia l 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 eithe r 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
consid ering the 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 f ind that the appellant did not seek to make a deposit into the
Civil Service Retirement and Disability Fund (Fund) and to instead find that he
did not prove his entitlement to a deferred annuity , we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant is a former employee of t he Department of the Navy (Navy)
in Subic Bay , Philippines . Initial Appeal File ( IAF), Tab 2 at 10 -17. The Navy
initially appointed him to a GS-5 Jungle Surviv al Instructor position on
January 16, 19 71, in the excepted serv ice, whic h had a not -to-exceed date of
January 15, 1972 . Id. at 17. The Navy continued to employ and promote him .
Id. at 11 -16. Upon his termination from Federal service on April 15, 1992 , he
held the position of GS-9 Training Instructor (Jungle Survivor School) and had
3
21 years, 4 months , and 28 days of service in accordance with the Filipino
Employees Personnel Instructions ( FEPI) and the collective b argaining
agreement . Id. at 10.
¶3 Although the Navy terminated the appellant in April 1992, he submitted a n
application for a deferred annuity pursuant to the Civil Service Retirement
System (CSRS) on May 18, 2014 —over 20 years later. Id. at 8 -9. On August 4,
2016, OPM issued a reconsideration decision denying his application. Id. at 6 -7.
The letter stated that, although the appellant had performed civilian service for
the Federal government, he had not performed service covered by the Civil
Service Re tirement Act (CSRA). IAF, Tab 2 at 6. Further, the letter explained
that, to be eligible for a civil serv ice annuity, an employee must have been
employed by the Federal Government for at least 5 years with at least 1 year
within the 2 -year period immediately preceding the employee’ s separation having
been covered by the CSRS. Id. The letter informed the appellant that he could
not meet this requirement for non -deduction service by ma king a deposit because
he was not a current employee serving in a covered positio n. Id. Thus, he was
not entitled to an annuity or to make a deposit. Id.
¶4 The appellant file d the instant appeal challenging the reconsideration
decision of OPM to the extent that he was denied a CSRS annuity for his service
ending on September 30, 1982 . IAF, Tab 1. He did not request a hearing. Id.
The administrative judge issued an initial decision affirming the reconsideration
decision. IAF, Tab 3, Initial Decision (ID).3
3 This appeal was originally consolidated with seve n other simultaneously filed appeals
making virtually identical claims, but the administrative judge terminated the
consolidation and issued a separate initial decision for each appellant . ID at 1 -2 n.1;
see Eight Philippine Retirement Applicants v. Offic e of Personnel Management , MSPB
Docket No. SF -0831 -16-0806 -I-1.
4
¶5 The appellant has filed a petition for review , and OPM has responded in
opposition to the appellant’s petition. Petition for R eview (PFR) File, Tabs 1, 4 .4
DISCUSSIO N OF ARGUMENTS ON RE VIEW
¶6 In appeals from OPM reconsideration decisions involving retirement
benefits under the CSRA, the appellant has the burden of proving entitlement to
benefits by preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(ii). To qualify for
an annuity under the CSRA, an employee ordinarily must have completed at least
5 years of creditable civilian service and at least 1 of the 2 years before
separation must be in “covered service.” 5 U.S.C. § 8333 (a)-(b); Quiocson v.
Office of Personnel Management , 490 F.3d 1358 , 1360 (Fed. Cir. 2007) . While
almost all Federal service is creditable, covered service includes only
appointments subject to the CSRA for which employees must deposit part of their
pay into the Fund . See Noveloso v. Office of Personnel Management , 45 M.S.P.R.
321, 323 (1990), aff’d , 925 F.2d 1478 (Fed. Cir. 1991) (Table). The service of
employees appointed under temporary, intermittent, term, and excepted indefinite
appointments is usually creditable, but it has been excluded from coverage under
the CSRA. Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301 , ¶ 8
(2011); 5 C.F.R. § 831.201 (a). Thus, an employee who has only served in such
appointments is not entitled to a CSRS annuity. Quiocson , 490 F.3d at 1360 .
4 The appellant has attached an annuity check and Standard Form 50s of two other
employees to his petition for review. PFR File, Tab 1 at 20 -25. The Board generally
will not consider evidenc e submitted for the first time on review absent a showing that
the documents and the information contained in the documents were unavailable before
the record closed despite due diligence and that the evidence is of sufficient weight to
warrant an outcome different from that of the initial decision. See Cleaton v.
Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015) , aff’d , 839 F.3d 1126 (Fed. Cir.
2016); 5 C.F.R. § 1201.115 (d). Here, the appellant has not alleged or shown that the
documents, all of which predate the close of the record, were unavailable below or that
they are material to the dispositive issue on review . Therefore, we do not consider
them for the first time on review.
5
¶7 The administrative judge issued an initial decision affirming the
reconsideration decision of OPM , finding that the appellant was not ent itled to a
CSRS annuity. ID at 6 -11. She found that the appellant served in temporary,
indefinite appointments or certain permanent positions in the excepted service, all
of w hich were subject to FEPI , and none of which were covered under the CSRA.
ID a t 7-8, 11; IAF, Tab 2 at 10 -17. Thus, she concluded that the appellant was
not entitled to the deferred annuity that he sought.5 ID at 11 .
¶8 On review, the appellant admits that each of his appointments was either
temporary or indefinite and that none was covered by the CSRA. PFR File, Tab 1
at 2 . However, he asserts that, accor ding to his interpretation of 5 C.F.R.
§ 831.303 (a), he was entitled to a deferred annuity under CSRS for his s ervice
beginning on January 16, 1971 , and ending on September 30, 1982. PFR File,
Tab 1 at 1 -17; IAF, Tab 1. He argues that, because , under section 831.303(a) , a
deposit was cons tructively made for this period of service, he was an “employee”
with “cover ed service” during that period and thus entitled to a CSRS annuity for
his service beginning on January 16, 1971 , and ending on September 30, 1982 .
PFR File, Tab 1 at 1 -17; IAF, Tab 1 .
¶9 In Lledo v. Office of Personnel Management , 886 F.3d 1211 (Fed. Cir.
2018), t he U.S. Court of Appeals for the Federal Circuit rejected a sufficiently
similar argument raised by another former employee of the Navy in Subic Bay,
Philippines seeking to have his creditable service in a position that was not
covered under the CSRS be deemed covered service for the purposes o f an
5 The administrative judge found that the a ppellant was not eligible to make a deposit
for any creditable service because he is not an “employee” as defined by 5 U.S.C.
§ 8332 (c). ID at 6 -7. However, the appellant did not ask to make a de posit and instead
stated that, according to his interpretation of 5 C.F.R. § 831.303 , he would instead
receive credit for his service from January 16, 1971 , until September 30, 1982 , with out
making a deposit. IAF, Tab 1 . Accordingly, we modify the initial decision to exclude
the administrative judge’s consideration of this issue and instead consider only the
appellant’s entitlement to a deferred annuity.
6
annu ity. The court explained that 5 C.F.R. § 831.303 (a) “permits an employee
engaged in creditable civilian service before October 1, 1982, for which
retirement deductions were not taken, to elect to make a deposit according to
5 U.S.C. § 8334 (c) or otherwise have his annuity reduced. ” Id. at 1214. The
purpose of this provision is to allow an individual who is otherwise entitled to an
annuity to include that creditable service in the annuity computation . Id. It does
not “convert creditab le service into covered service ” for the purpose of annuity
entitlement. Id. Accordingly , we find that 5 C.F.R. § 831.303 (a) is not related to
whether the appellan t is entitled to make a deposit and provides no basis for
finding that the appellant had covered service.
¶10 The appellant also asserts that he was entitled to receive both FEPI benefits
and a CSRS annuity. PFR File, Tab 1 at 18 -19. However, an employee’s r eceipt
of benefits under a non -CSRS plan, such as FEPI, indicates that this service was
not covered under the CSRS . Quiocson , 490 F.3d at 1360. The appellant’s
Standard Form 50 documenting his termination from Federal ser vice on April 15,
1992 , indicates that he received benefits under FEPI , and he does not dispute this.
IAF, Tab 2 at 10 ; PFR File, Tab 1. Thus, this is further evidence that he was not
entitled to a CSRS annuity . Espiritu v. Office of Personnel Management ,
114 M.S.P.R. 192 , ¶ 9 (2010), aff’d per curiam , 431 F. App’x 897 (Fed. Cir.
2011).
¶11 We otherwise find no reason to disturb the administrative judge’s
concl usion that the appellant’s service was not covered by the CSRA and w as
instead subject to FEPI . ID at 11. Accordingly, we find that the appellant is not
entitled to a deferred annuity under the CSRA. See Quiocson , 490 F.3d at 1361.
7
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 whic h to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropr iate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appl icable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choic es of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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
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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 j urisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
7 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
for Merit Systems Protection Board appellants before the 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 | BAGAT_GREGORIO_M_SF_0831_16_0798_I_1_FINAL_ORDER_2013418.pdf | 2023-03-21 | null | SF-0831 | NP |
3,379 | https://www.mspb.gov/decisions/nonprecedential/BARNES_LISA_M_AT_0752_16_0686_I_1_FINAL_ORDER_2013544.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA M. BARNES,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -16-0686 -I-1
DATE: March 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa M. Barnes , Summerville, South Carolina, pro se.
Thomas J. Tangi , Jacksonville, Florida, 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
dismissed her removal appeal as settle d. Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 for
review. Therefore, we DENY the petition for revie w and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant filed an appeal of the agency’s action removing her base d on
a charge of medical inability to perform the essential duties of her position.
Initial Appeal File (IAF), Tab 1 at 3, 7 -9, 13 . During the appeal process, the
parties engaged in mediation and , with the assistance of a Board Mediator , they
entered int o a settlement agreement. IAF, Tab s 14-15. Under the terms of the
agreement, the agency was to pay the appellant a lump sum of $30,000, in
exchange for which the appellant agreed to a dismissal of her appeal with
prejudice. IAF, Tab 15 at 1 -2. After fi nding that the settlement agreement was
lawful on its face and the parties entered into it voluntarily , the administrative
judge entered the agreement into the record for enforcement purposes and
dismissed the appeal as settled. IAF, Tab 16, Initial Decis ion (ID) at 1-2. He
advised the parties that the deadline for filing a petition for review was
January 16, 2017. ID at 3.
3
¶3 The appellant has filed a petition for review , which she submitted on
January 18, 2017, arguing that she was pres sured into signing the agreement .
Petition for Review (PFR) File , Tab 1 at 4. She also has filed a motion requesting
that the Board waive the deadline for filing her petition. PFR File, Tab 4. The
agency did not respond to either the petition or the motion.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has shown good cause for her untimely petition for review.
¶4 The appellant admits that her petition for review is untimely. PFR File,
Tab 1 at 4, Tab 4 at 2. Because the January 16, 2017 deadline for filing fell on a
holiday, it advanced to the next business day, or January 17, 2017. See 5 C.F.R.
§ 1201.23 (providing that a deadline that falls on a Federal holiday is extended to
include the following wor kday) . Thus, the appellant’s January 18, 2017 petition
for review was 1 day late. PFR File, Tab 1.
¶5 In a sworn declaration , the appellant, who is pro se, states that between the
time she signed the settlement agreement and filed her petition for review , she
was bedridden due to medical conditions . PFR File, Tab 4 at 2. She also submits
statement s from her psychiatrist stating, inter alia, that he has been treating the
appellant for some of these conditions and that she has been “unable to manage
usual activities and reports. ” Id. at 4 -5. He indicates that following the
mediation that led to the settlement agreement , the appellant’s symptoms
worsened. Id. at 5. In light of the appellant’s sworn statement and medical
evidence, the shortness of her del ay, and her pro se status , we find good cause to
waive her 1 ‑day filing delay. See Lacy v. Department of the Navy , 78 M.S.P.R.
434, 437 (1998) ( observing that the Board will find goo d cause for a filing delay
when an appellant demonstrated that he suffered f rom an illness that affected his
ability to file on time); Moorman v. Department of the Army , 68 M.S.P.R. 60 ,
62-63 (1995) (reflecting factors relevant to determining if an appellant has shown
good cause for his filing delay, including the length of the delay, whether the
4
appellant is proceeding pro se, and whether he has presented evidence of
circumstance s beyond his control that affected his ability to comply with the time
limits ), aff’d per curiam , 79 F.3d 1167 (Fed. Cir. 1996) (Table). Further, the
agency has not alleged any prejudice resulting from a waiver of the time limit.
Moorman , 68 M.S.P.R. at 63.
The appellant has not met her burden to show that the agency engaged in coercion
or that she did not voluntarily sign the agreement .
¶6 In her petitio n for review , the appellant request s the Board to review the
“low settlement that [she] felt pressured to sign.” PFR File, Tab 1 at 5. A party
may challenge the validity of a settlement agreement if she 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) . To
establish that a settlement was fraudulent as a result of coercion or duress, a party
must prove that she involuntarily accepted the other party ’s terms, that
circumstances permitted no alternative, and that such ci rcumstances were the
result of the other party ’s coercive acts . Id. The party challenging the validity of
the settlement agreement bears a “heavy burden.” Asberry v. U.S. Postal Service ,
692 F.2d 1378 , 1380 (Fed. Cir. 1982). An appellant ’s mere post -settlement
remorse or change of heart cannot serve as a basis for setting aside a valid
settlement agreement. Hinton , 119 M.S.P.R. 129 , ¶ 4.
¶7 The appellant asserts that, since entering into the settlement agreement , her
medical conditions have deteriorated. P FR File, Tab 4 at 2. However, she does
not clai m that her medical conditions caused her to sign the agreement or to not
understand what the settlement provided when she signed the agreement . Id.
Instead, she argues that she felt “pressured, almost forced” to sign the agreement
because the mediator stated that he needed to get to the airport, the agency
attorney said he needed a “final answer then,” and her husband wanted her to
begin the healing process. Id. We do not find that these are allegations that the
agency representative engaged in coercive acts or of circumstances that left the
5
appellant with no alternative but to accept the agreement as presented by the
agency. Furthermore, the agre ement specifically states that it is “not based on
any harassment, threats, coercion, or intimidation and [the parties] acknowledge
that they enter into this Agreement knowingly, voluntarily and of their own free
will.” IAF, Tab 15 at 2 -3. To the extent the appellant may be trying to assert that
her medical conditions prevented her from understanding the terms of the
agreement, the agreement also explicitly states that she “does not suffer from any
mental disease or defect that impairs her ability to thin k, analyze, and understand
the terms and conditions of th is agreement.” Id. at 3. Moreover, the record
reflects that the appellant was represented during the mediation process by her
husband, who signed the settlement agreement as her representative. Id. Thus,
we find that the appellant has not, by her challenges to the validity of the
agreement, met her burden of proving that the settlement agreement was coerced
or that she did not freely enter into the agreement .
¶8 The appellant also suggests that the parties verbally agreed that she would
be awarded a disability retirement as a result of signing the settlement
agreement.3 PFR File, Tab 1 at 5. However, the settlement agreement contains
no such term, and further provides that it is a “full and final settlement of . . . all
issues related to [the appellant’s] employment .” IAF, Tab 15 at 1. Similarly, it
plainly provides that the lump sum payment to the appellant “represents full
settlement of this matter and all relief sought by [the] Appellant.” Id. at 1-2; see
Birdsong v. Department of the Navy , 75 M.S.P.R. 524, 528 (1997) (explaining
that parol evidence only is admissible to show the parties’ intent if the terms of
an agreement are ambiguous) . Thus, the appellant waived her rights to claim any
additional damages associated with her employment with the agency. See
3 We offer no opinion as to whether the appellant i s eligible to file for disability
retirement with the Office of Personnel Management, which has its own filing
deadlines.
6
Swidecki v. U.S. Postal Service , 101 M.S.P.R. 110 , ¶ 25 (20 06) (finding that a
settlement agreement providing that it was a “full and final release of all matters”
in the appeal constitutes a waiver of the right to move for payment of attorney
fees).
¶9 While the appellant would like to revoke the settlement agreemen t, her
post-settlement remorse cannot serve as a basis for setting aside a valid
settlement agreement. Hinton , 119 M.S.P.R. 129 , ¶ 4. Further, her arguments
that the agency caused the medical conditions that led to her removal, should
have permitted her to take leave instead of removing her, and “harm[ed] [her]
reputation” after she left her job are not relevant to the dispositive iss ues in this
appeal. PFR File, Tab 1 at 5.
¶10 Accordingly, we conclude that the appellant has provided no basis upon
which to disturb the initial decision dismissing this appeal as settled .
NOTICE OF APPEAL RIG HTS4
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 Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and 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.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
Please read carefully each of the three main possible choices of review
below to decide which one 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 Fed eral Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pr o Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may v isit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file 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:
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 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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 Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARNES_LISA_M_AT_0752_16_0686_I_1_FINAL_ORDER_2013544.pdf | 2023-03-21 | null | AT-0752 | NP |
3,380 | https://www.mspb.gov/decisions/nonprecedential/MOOS_SHAWNA_DE_0714_18_0311_I_1_FINAL_ORDER_2013550.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHAWNA MOOS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -18-0311 -I-1
DATE: March 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shawna Moos , Sheridan, Wyoming, pro se.
Eric Christeson , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
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 appellant’s petition for review, the parties signed
a document entitled “SETTLEMENT AGREEMENT” on February 22 and 24,
2023 . PFR File, Tab 8 at 5-8. The document provides, among other things, for
the withdrawal of the above -captioned appeal. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, wh ether 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 freel y entered into it. See
Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 1 0-11 (2017).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the reco rd
for enforcement by the Board . PFR File, Tab 8 at 5 -8. Accordingly, we find that
dismissing the appeal with prejudice to refiling ( i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record 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 PARTIES OF TH EIR
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 offic e that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
3
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
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 petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you ma y 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 provided by any attorney nor warrants th at
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 | MOOS_SHAWNA_DE_0714_18_0311_I_1_FINAL_ORDER_2013550.pdf | 2023-03-21 | null | DE-0714 | NP |
3,381 | https://www.mspb.gov/decisions/nonprecedential/KNIGHT_KARL_K_DE_0714_18_0014_I_1_FINAL_ORDER_2012790.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KARL K. KNIGHT, SR ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -18-0014 -I-1
DATE: March 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karl K. Knight, Sr. , Tolleson, Arizona, pro se.
Maxine N. Romero , Esquire, Phoenix, Arizona, 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.
Initial Appeal File, Tab 55, Initial Decision; Petiti on 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 “SETTLEMENT AGREEMENT” signed by the agency settlement
authority on January 30, 2023, and by the appellant on January 31, 2023. PFR
File, Tab 7, at 6. The document provides, among other things, for the dismissal
of the appeal . Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Post al 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
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 enf orcement by the Board. PFR File, Tab 7 at 6 . Accordingly, we find that
dismissing the petition for review 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 r equirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 whic h option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:// www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept re presentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was base d, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeal s 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 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:
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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 205 07
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
dispo sition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | KNIGHT_KARL_K_DE_0714_18_0014_I_1_FINAL_ORDER_2012790.pdf | 2023-03-20 | null | DE-0714 | NP |
3,382 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_JORDAN_MARGARET_J_DA_0752_16_0343_X_1_FINAL_ORDER_2012995.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARGARET J. THOMAS -JORDAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER S
DA-0752 -16-0343 -X-1
DA-0752 -16-0343 -C-1
DATE: March 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Margaret J. Thomas -Jordan , Benton, Louisiana, pro se.
Treva Grandpre -Cadres , New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 On April 27, 2017, t he administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s final decision in
the underlying appeal and granting the appellant’s petition for enforcemen t.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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
Thomas -Jordan v. Department of the Army , MSPB Docket No. DA-0752 -16-
0343 -C-1, Compliance File (CF), Tab 19, Compliance Initial Decision (CID );
Thomas -Jordan v. Department of the Army , MSPB Docket No. DA-0752 -16-
0343 -I-1, Initial Appeal File (IAF), Tab 46, Initial Decision (ID). The appellant
has filed a petition for review of the compliance initial decision . Thomas -Jordan
v. Department of the Army , MSPB Docket No. DA-0752 -16-0343 -C-1,
Compliance Petition for Review ( CPFR) File, Tab 1 . The agency has filed a
statement of compliance, asserting that it has complied with the Board’s final
order. Thomas -Jordan v. Department of the Army , MSPB Docket No. DA-0752 -
16-0343 -X-1, Compliance Referral File (CRF), Tab 1.
¶2 For the reasons discussed below, we DENY t he appellant’s compliance
petition for review and AFFIRM the compliance initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113 (b). We further find that the agen cy
in now in compliance and DISMISS the appellant’s petition for enforcement.
5 C.F.R. § 1201.183 (c)(1)).
BACKGROUND
¶3 The agency removed the appellant from her Federal position as a Project
Manager effective April 2 5, 2016. IAF, Tab 8 at 1 3. The appellant timely
appealed her removal to the Board, raising discrimination and due process claims .
IAF, Tab s 1, 9, 14, 28 . In a December 12, 2016 initial decision, the
administrative judge reversed the appellant’s removal on due process grounds and
ordered the agency to cancel the removal , retroactively restore the appellant
effective April 25, 2016, and provide her the appropriate amount of back pay and
benefits in accordance with Office o f Personnel Management regulations. ID
at 4-8, 24. The administrative judge additionally found that the appellant failed
to prove her discrimination claims. ID at 8 -23. The initial decision became the
Board’s final decision after neither party petition ed for administrative review.
3
¶4 The appellant filed a petition for enforcement of the initial decision,
claiming that the agency had not fully complied with the administrative judge’s
orders. CF, Tab 1. The agency submitted evidence showing that it cancelled the
appellant’s removal effective April 25, 2016, returned her to duty on January 17,
2017 , and paid her back pay in net amount of $36,366.86, which included
adjusted gross back pay in the amount of $65,982.08 and interest in the amount of
$920.0 9, minus deductions totaling $30,535.31 for Federal income tax
($20,038.61), Medicare ($953.61), Social Security ($4,077.52), Federal
Employment Retirement System (FERS) contributions ($2,045.45), Federal
Employee Health Benefit (FEHB) debt ($215.60), life insurance premiums
($28.05), and state income tax ($3,176.47) . CF, Tab 4 at 11 -12, Tab 6 at 5, 7,
Tab 7 at 15. The agency also provided evidence reflecting that the appellant had
a number of disputes with the agency’s calculation of the back pay award,
including the tax and FEHB deductions, but that the Defense Finance and
Accounting Service (DFAS) had investigated her concerns and determined the
award was correct . CF, Tabs 4 -8, 11. The appellant maintained that the agency
was not in compliance with the Board’s final order. CF, Tabs 12 -18.
¶5 In an April 27, 2017 compliance initial decision , the administrative judge
found that the agency failed to show that it paid the appellant the app ropriate
amount of back pay, withheld the correct amount in taxes, or provided her the
opportunity to make a retroactive contribution to her Thrift Savings Plan (TSP)
account. CID at 4-5. Accordingly, t he administrative judge granted the
appellant’s peti tion for enforcement and ordered the agency to submit evidence
showing that it had correctly calculated and paid the appellant back pay and
benefits, made the correct tax deductions, and allowed her an opportunity to make
retroactive contributions to her T SP account for the back pay period.3 CID at 6-7.
3 In the compliance initial decision, the administrative judge stated that the back pay
period included the period from April 25, 2016, through January 8, 2017. CID at 6 -7.
However, the back pay period did not end until January 17, 2017, the day the agency
4
The administrative judge informed the agency that, pursuant to MSPB
regulations, if it decided to take the actions required by the decision, it must
submit to the Clerk of the Board a statement that it ha d taken the actions
identified in the compliance initial decision , along with evidence establishing that
it ha d taken those actions. CID at 7-8. In addition, he informed the parties that
they could file a petition for review if they disagreed with the compliance initial
decision. CID at 8-9.
DISCUSSION OF ARGUME NTS AND EVIDENCE
ON REVIEW AND ON COMPL IANCE
Compliance Petition for Review
¶6 On May 31, 2017, the appellant filed a petition for review of the compliance
initial decision. CPFR File, Tabs 1 -2. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. 5 C.F.R.
§ 1201.115 .
¶7 Here, o n petition for review, the appellant does not challenge the
administrative judge’s specific findings in the compliance initial decision ; rather ,
instructed the appellant to return to work. CF, Tab 4 at 11 -12. Although the
administrative judge’s reference to January 8, 2017, as the end of the back pay period is
incorrect, the error appears to be harmless . In evidence later submitted by the agenc y,
it is clear that the agency correctly considered the back pay period as running through
January 16, 2017. E.g., CRF, Tab 7 at 7 (reflecting that the agency paid the appellant
48 hours of back pay for the pay period ending on January 21, 2017).
5
she continues to argue that the agency is in noncompliance with the initial
decision and seeks compensatory damages in the amount of $24.2 million to
remedy the agency’s noncompliance and its alleged discriminatory treatment of
her. CPFR File, Tabs 1 -2. As to the appellant’s request for compensatory
damages, t he Back Pay Act does not authori ze the Board to award compensatory
damages to a prevailing appellant. Wingate v. U.S. Postal Service , 118 M.S.P.R.
566, ¶ 3 n.2 (2012). In addition , because the appellant did not prevail based on a
finding of discrimination, she is not entitled to compensatory damages on that
basis. See id.
¶8 After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review.4 Accordingly , we deny the appellant’s petition for review
and affirm the adminis trative judge’s findings in the compliance initial decision .5
Petition for Enforcement
¶9 As noted above, in the compliance initial decision, the administrative judge
found that the agency was not in full compliance with the Board’s final decision
because it had not demonstrate d that it correctly calculated and paid the
appellant’s back pay and benefits , made the correct tax deductions, and allowed
her an opportunity to make retroactive contributions to her TSP account . CID
at 1-6. Accordingly, the administr ative judge ordered the agency to submit
4 We h ave reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is either contained in the record below or is not material to her
appeal. CPFR File, Tabs 1 -2. Therefore, it provides no basis to disturb the compliance
initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (holding
that the Board will not grant a petition for review based on ne w evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision); Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980)
(holding that evidence that is already a part of the record is not new).
5 On July 18, 2017, the appellant filed a motion to enter additional evidence into the
record. CPFR File, Tab 8. Because we find the addit ional evidence immaterial to her
petition for review of the compliance initial decision, we DENY the motion.
6
evidence explaining its calculations and demonstrating that it allowed the
appellant an opportunity to make retroactive contributions to her TSP account for
the back pay period, as well as evidence that the agency m ade appropriate
adjustments to the back pay amount, employer contributions, and tax liabilities in
light of the TSP election. CID at 6 -7.
¶10 On June 1 , 2017, the agency submitted a response to the compliance initial
decision stating that it had taken the ordered actions and was now in compliance
with the Board’s orders. CRF, Tab 1. The agency asserted that it paid the
appellant the correct amount of back pay and interest , minus appropriate
deductions , and provided evidence showing that, in addition to the first gross
back pay award of $36,366.86, the agency paid the appellant an additional
payment in the net amount of $1,344.14, which included adjusted gross back pay
in the amount o f $1,821.16 and interest in the amount of $39.32, minus
deductions totaling $516.34 for Federal income tax ($38.98), Medicare ($23.28),
Social Security ($99.55), FERS contributions ($56.44), FEHB debt ($215.60), life
insurance premiums ($2.25), state incom e tax ($57.24), and a voluntary allotment
($23.00) .6 Id. at 6-7, 15, 23 . The agency stated that the appellant had opted not
to deduct FEHB premiums during the back pay period but that she owed a FEHB
debt of $1,293.60 for a time period prior to her separ ation, which resulted in an
ongoing deduction from her pay. Id. at 6-7, 28.
¶11 Regarding the appellant’s TSP benefit , the agency provided a sworn
affidavit from a human resources specialist stating that the agency had credited
6 The agency also alleged that the appellant was not ready, willing, and able to perform
her duties during at least a portion of the back pay period. CRF, Tab 1 at 8-10. There
is no indication, however, that the agency withheld back pay for any part of th e back
pay period on this basis. CRF, Tabs 1, 7; CID at 4 n. 2 (noting that, although the
evidence called into question the appellant’s claim that she was ready, willing, and able
to perform her duties during the back pay period, the agency apparently acc epted her
claim as true and paid her back pay without deduction for any period of time in which
she may not have been available to report to duty). Accordingly, we need not address
the appellant’s ability to work during the back pay period.
7
the appellant’s TSP account w ith the agency automatic (1%) contribution for the
full back pay period upon her reinstatement. Id. at 38. Regarding the appellant’s
TSP contributions, however, t he human resources specialist explained that the
appellant made a hardship withdrawal from h er TSP account in February 2016
and that, as a condition of the hardship withdrawal, she could not contribute to
her TSP account for 6 months. CRF, Tab 1 at 38, 40. Thus, she was not
contributing to her TSP account at the time of her April 2016 removal a nd was
not eligible to resume contributions until September 2016. Id. The human
resources specialist further explained that, a lthough the appellant was eligible to
make up her TSP contributions for the part of the back pay period beginning in
September 2016 , the agency had been unable to process the makeup contributions
because the appellant had not elected a contribution amount or percentage despite
being advised to contact the Army Benefits Center to do so . Id. at 39, 43. The
human resources speciali st averred that, once the appellant advised the agency of
her contribution election, the agency could process her makeup TSP contributions
and that she would receive a debt letter to that effect. Id. at 38-39.
¶12 The appellant responded to the agency’s com pliance submission on June 20,
2017, arguing that the agency did not explain how it calculated the tax
deductions , incorrectly stated she had a FEHB debt, and did not contribute the
correct amount to her TSP account , provide her a TSP election form, or tel l her to
contact the Army Benefits Center to make an election . CRF, Tab 3 at 6 -7. She
also argued that she should have been eligible to resume her TSP contributions in
August 2016 at the latest . Id. at 7.
¶13 In a June 19, 2019 Order, the Board identified technical deficiencies in the
agency’s compliance submission and requested additional explanation and
evidence . CRF, Tab 6. In particular, the Board directed the agency to provide
the following: a detailed accounting and explanation of all tax deduction s from
the back pay award; an explanation of all TSP deductions from the back pay
award; evidence demonstrating that the ability to restart TSP deductions was
8
communicated to the appellant and that she was given an opportunity to do so;
legible spreadsheet s detailing back pay and deductions for the entire back pay
period, along with a narrative explanation of the payments and any deductions; a
written explanation of the source and amount of the appellant’s alleged FEHB
debt; and a narrative explanation of a ll these payments and deductions. Id. at 4.
The order advised the appellant that she could reply to the agency’s submission
within 15 calendar days of service and that, if she did not respond, the Board
might assume that she was satisfied and dismiss her petition for enforcement. Id.
at 4-5.
¶14 On December 10, 2019, the agency responded to the Board ’s order,
asserting again that it was in full compliance with the Board’s orders . CRF,
Tab 7. In support , the ag ency provided a detailed sworn declaration from a
DFAS analyst and several spreadsheets reflecting the agency’s calculations of the
back pay owed and appropriate deductions . Id. at 6-21. According to the DFAS
analyst , the appellant’s back pay award was p aid in the two installments
described above : the first on March 2, 2017, in the net amount of $36,366.86 ,
and the second on May 25, 2017, the net amount of $1,344.14 to account for the
late-processed May 26, 2016 within -grade -increase . Id. at 7-14. The DFAS
analyst explained that the appellant’s FEHB debt arose from the agency paying
FEHB premiums on her behalf for 6 pay periods prior to the start of the back pay
period and that the debt was being collected one premium ($215.60) at a time out
of the appe llant’s current pay, including one premium out of each back pay
installment. Id. at 9, 12. Regarding the appellant’s TSP contributions, t he
agency stated that it did not have evidence demonstrating that it had
communicated to the appellant that she could restart her TSP contributions
because she made a hardship withdrawal through TSP, which is a separate
agency. Id. at 5. The agency explained that , because the appellant had worked
directly with TSP to make the hardship withdrawal, it was unaware of the
9
hardship withdrawal and would not have known to notify her when she could
restart her contributions. Id.
¶15 The appellant did not respond to the agency’s second compliance
submission.
¶16 When the Board reverses a personnel action, it orders that the appella nt be
placed, as nearly as possible, in the same situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). The agency bears the burden to prove
compliance with the Board’ s order by a preponderance of the evidence.7 Id.;
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.
¶17 As described above, in the compliance initial decision, the administrative
judge found that the agency failed to establish that it had complied with its
obligation to pay the appellant the appropriate amount of back pay for the back
pay period, that it mad e the correct tax deductions, and that it allowed her an
opportunity to make retroactive contributions to her TSP account for the back pay
period. CID . The agency’s submissions and the appellant’s decision not to
respond to the agency’s second compliance submission establish that the agency
has now reached full compliance with its obligation s.
¶18 As set forth above, the agency ’s submissions demonstrate how it determined
the back pay and interest due to the appellant, as well as the appropriate
deductions fr om the total back pay amoun t, and reflect that it paid the appellant
$36,366.86 (adjusted gross back pay of $65,982.08 plus $920.09 in interest minus
7 A preponde rance 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).
10
deductions of $30,535.3) on March 2 , 2017, and $1,344.14 (adjusted gross back
pay of $1,821.16 plus $39.32 in interest minus $516.34 in deductions) on May 25,
2017 . CRF, Tabs 1, 7. Although the appellant argued that the agency’s first
compliance submission contained incorrect information and failed to adequately
explain its back pay calculations, she did not respond to the agency’s second
submission, despite being notified both of her opportunity to do so and that the
Board might construe her decision not to respond as evidence that she was
satisfied with the agency’s compliance. CRF, Tabs 3, 6. Accordingly , we
assume that the appellant is satisfied with the agency’s back pay calculations and
payments and find the agency in compliance with its obligation to calculate and
pay the correct amount of back pay and interest minus appropriate deductions.
See Baumg artner v. Department of Housing and Urban Development ,
111 M.S.P.R. 86 , ¶ 9 (2009) (assuming that an appellant who did not res pond to
the agency’s evidence of compliance was satisfied with the agency’s compliance).
¶19 Regarding the appellant’s TSP account , the regulations implementing the
Back Pay Act require that an agency correct errors affecting an employee’s TSP
account consistent with the regulations prescribed by the Federal Retirement
Thrift Investment Board . Rittgers v. Department of the Army , 123 M.S.P.R. 31 , ¶
7 (2015); 5 C.F.R. § 550.805 (h). Pursuant to these regulations, the employing
agency must give a reinstated employee who would have been eligible to
contribute to her TSP account but for the erroneous separation the opportunity to
submit a new contribution election for purposes of makeup contributions or to
reinstate the contribution election she had on file at the time of her separation for
makeup contributions . 5 C.F.R. § 1605.13 (a)(2). The regulations also provide
the employee’s makeup contributions must be accompanied by attributable
agency matching contributions and that, even if the reinstated employee does not
elect to make up her employee contributions, the employing agency must make
all appropriate agency automatic (1%) contributions associated with the back pay
award. 5 C.F.R. § 1605.13 (c)(3).
11
¶20 Here, the record reflects that the agency credited the appellant’s TSP
account with the agency automatic (1%) contribution for the back pay period but
was unable to process her makeup contributions because she was not contrib uting
to her TSP account at the time of her separation and had not made an election of
the amount or percentage of her pay for makeup contributions . CRF, Tab 1
at 6-7, 38. In its first compliance submission, the agency explained that, to make
such an ele ction, the appellant needed to contact the Army Benefits Center and
that, once she did so, the agency could process her makeup TSP contributions .
Id. at 38 -39. The agency also provided a May 24, 2017 email, reflecting that an
agency official informed the appellant of the appropriate point of contact
regarding her TSP issues and “for an “overview on what is [sic] going to take for
you to make contributions for previous pay periods and how it would be
processed.”8 Id. at 43. There is no indication , howeve r, that the appellant
contacted that person, or anyone in the Army Benefits Center, or that she made an
election regarding the amount or percentage of her pay she wanted to
retroactively contribute to her TSP account. Accordingly, we find that the agency
has taken all of the actions with respect to the appellant’s TSP account for the
back period that it possibly could have given the appellant’s failure to make the
necessary election. See Coe v. U.S. Postal Service , 101 M.S.P.R. 575 , ¶¶ 13 -14
(holding that, when an appellant does not cooperate with the agency ’s efforts to
8 The agency’s statement in its second compliance submission that it did not have
evidence demonstrating that the appellant was informed that she could restart her TSP
contributions or that she was given an opportunity to do so is contradicted by the
evidence in its first compliance submission. CRF, Tab 1 at 38, 42, Tab 7 at 5. In
particular, the May 24, 2017 email reflects that the agency official provided the
appellant the appropriate point of contact to resolve outstanding issues with her TSP
makeup contributions. CRF, Tab 1 at 43. Moreover , the agency’s first compliance
submission informed the appellant of what she must do to enable the agency to process
her makeup TSP contributions. Id. at 38. Accor dingly, notwithstanding the apparently
incorrect representation in the agency’s second compliance submission, we find that the
agency has satisfied its obligation under 5 C.F.R. § 1605.13 (a)(2) to give the appellant,
as a reinstated employee, an opportunity to submit a new contribution election for
purposes of makeup TSP contributions.
12
achieve compliance, the Board may deny the petition for enforcement) , aff’d ,
208 F. App’x 932 (Fed. Cir. 2006) . Moreover, because the appellant did not
respond to the agency’s second compliance submission, we assume that she is
satisfied with the actions it has taken regarding her TSP contributions.
Baumgartner , 111 M.S.P.R. 86 , ¶ 9 .
¶21 In light of the foregoing, we find that the agency is now in compliance and
dismiss the petition for enforcement . This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE 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 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
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of rev iew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter .
13
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failur e to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have ques tions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
14
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 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
15
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a
method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.10 The court of appeals must receive your
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
16
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 yo ur petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses t he 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.
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 | THOMAS_JORDAN_MARGARET_J_DA_0752_16_0343_X_1_FINAL_ORDER_2012995.pdf | 2023-03-20 | null | S | NP |
3,383 | https://www.mspb.gov/decisions/nonprecedential/HANDSOME_STREAT_CASSANDRA_DC_1221_18_0161_W_1_FINAL_ORDER_2013005.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASSANDRA HANDSOME -STREAT,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER S
DC-1221 -18-0161 -W-1
DATE: March 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant.
Debra M. Evans , Esquire, Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for rev iew of the March 16, 2018 initial
decision in this appeal. Initial Appeal File, Tab 21, Initial Decision ; Petiti on 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 “SETTLEMENT AGREEMENT” signed and dated by the appellant on
January 19, 2023, and by the agency on January 23, 2023. PFR File, Tab 10 at 8.
The document provides, among other things, that the appellant would withdraw
his MSPB appeal. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement 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 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 agree that the agreement will be entered into the record
for enforcement by the Board. PFR File, Tab 10 at 5. In addition, we find that
the agreement is lawful on its face and that the parties freely entered into it.
¶5 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 circums tances, and we accept the settlement agreement into the record for
enforcement purposes.
¶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 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 Boar d 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 sett lement 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 applicabl e to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 whic h 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 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 address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within th e court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informatio n regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
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 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
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D. C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Circu it
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, 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
Additional information about the U.S. Court of Appeals for the 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 | HANDSOME_STREAT_CASSANDRA_DC_1221_18_0161_W_1_FINAL_ORDER_2013005.pdf | 2023-03-20 | null | S | NP |
3,384 | https://www.mspb.gov/decisions/nonprecedential/GERMAIN_JEAN_R_NY_4324_21_0117_I_1_REMAND_ORDER_2013031.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEAN R. GERMAIN,
Appellant,
v.
FEDERAL RESERVE SYST EM,
Agency.
DOCKET NUMBER
NY-4324 -21-0117 -I-1
DATE: March 20, 2023
THIS ORDER IS NONPRECEDENTIAL1
Jean R. Germain , Princeton, New Jersey, pro se.
Linda Ajawara and Richard Grant , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
REMAND ORDER
¶1 The appell ant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act 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
1994 (USERRA) appeal for adjudicatory efficiency. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the New York Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The a ppellant was em ployed as a CN -51 Examiner for the Consumer
Financial Protection Bureau in New York City. Germain v. Federal Reserve
System , MSPB Docket No. NY -0752 -21-0042 -I-1, Initial Appeal File (0042 IAF),
Tab 1 at 7. Effective December 7, 2020 , the agency removed the appellant from
his position for disrespectful conduct and making an inflammatory statement. Id.
at 29-36. On January 7, 2021, the appellant appealed his removal to the Board.
0042 IAF, Tab 1 at 3, 5. During his appeal, the appellant raised various
affirmative defenses , including a violation of his rights under USERRA.
0042 IAF, Tab 89 at 2, Tab 93 at 1 . The appellant’s requested hearing was held
on September 13, 2021. 0042 IAF, Tab 100, Hearing Recording. Thereafter, the
administrative judge issued an initial decision affirming the appellant’s removal,
and t he appellant filed a petition for review of that initial decision, which is
pending before the Board and will be addressed in a separately issued decision .
0042 IAF , Tab 109, Initial Decision ; Germain v. Federal Reserve System , MSPB
Docket No. NY-0752 -21-0042 -I-1, Petition for Review File, Tab 1.
¶3 On June 25, 2021 , the appellant filed this appeal indicating that he was
challenging his removal . Germain v. Federal Reser ve System , MSPB Docket
No. NY-4324 -21-0117 -I-1, Initial Appeal File (0 117 IAF), Tab 1 at 3, 5 . He
provided a March 23, 2021 letter stating that his Department of Labor (DOL)
USERRA file was being referred to the Office of Special Counsel for
consideration of legal action. 0117 IAF, Tab 3 at 4. The administrative judge
docketed the appeal as a USERRA appeal; however , she noted that the appeal
seemed duplicative of his prior appeal and allowed the appellant an opportunity to
3
provide arguments and evidence on that issue . 0117 IAF, Tabs 6-7. The
appellant indicated that the same administrative judge mishandled his prior appeal
when she repeatedly postponed his hearing and the agency withheld evidence and
prevented certain witnesses from participating in the hearing. 0117 IAF, Tab 8
at 5-6. The administrative judge issued an initial decision dismiss ing the appeal
for adjudicatory efficiency. 0117 IAF, Tab 10, Initial Decision (ID) at 3. She
found that the appellant’s USERRA claim was litigated during the prior appeal
and would be addressed in the initial decision in that appeal. ID at 2.
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He asserts that he raised claims in this appeal that
were not raised or adjudicated in the prior appeal . Id. at 6. The agency filed a
response, PFR File, Tab 3, to which the appellant replied, PFR File, Tab 4.
ANALYSIS
¶5 The administrative judge correctly set forth the legal principle that, when an
appellant file s an appeal that raises claims raised in an earlier appeal after the
initial decision in the earlier appeal has been issued but before the full Board has
acted on a petition for review, it is appropriate to dismiss the subsequent appeal
on the grounds of a djudicatory efficiency. ID at 2 -3; see Bean v. U.S. Postal
Service , 120 M.S.P.R. 447, ¶ 5 (2013); Kinler v. General Services Adm inistration ,
44 M.S.P.R. 262, 263 -64 (1990). On review, t he appellant argues that he raised
five allegations in his USERRA case, but the administrative judge did not
consider four of those allegations in his prior appeal: (1) the agency did not
promote him in accordance with the Veterans ’ Recruitment Appointment
authority; (2) the agency did not properly evaluate and hire him into the correct
grade and quartile pay plan ; (3) the a gency offered a non -veteran a higher
starting -onboard salary than veterans; and (4) the agency did not reasonably
accommodate him by providing him assistance in upgrading his skills to maintain
employment. PFR File, Tab 1 at 6, Tab 4 at 5 -6. He requests that the Board
4
consider his USERRA claims in this appeal. PFR File, Tab 4 at 7. Because the
above U SERRA claims raised in this appeal were not ad dressed in the prior Board
appeal and thus will not be fully resolved by the prior appeal , the adjudicatory
efficiency doctrine relied on by the administrative judge does not apply.3
¶6 Although the appellant explicitly raises the specific allegations he ma de
before DOL for the first time on review, t here is no statutory time limit for filing
an appeal under USERRA, and if an appellant raises a USERRA claim for the
first time on review , the Board must adjudicate it. Henson v. U.S. Postal Service,
110 M.S.P.R. 624 , ¶ 10 n.6 (2009) . The Board has adopted, and the U.S. Court of
Appeals for the Federal Circuit has endorsed, a “liber al approach in determining
whether jurisdiction exists under USERRA.” Beck v. Department of the Navy,
120 M.S.P.R. 504 , ¶ 8 (201 4) (quoting Yates v. Merit Systems Protection Board,
145 F.3d 1480 , 1484 (Fed. Cir. 1998)). Further, a n appellant must receive
explicit information on what is required to est ablish an appealable jurisdictional
issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed.
Cir. 1985). Here, we believe that the administrative judge provided overly brief
jurisdictional notice for the appellant’s USERRA claims in his prior appeal.
0042 IAF, Tab 93.
¶7 Thus, o n remand, the administrative judge shall inform the appellant of how
to establish jurisdiction over his USERRA claims . See Rassenfoss v. Department
of the Treasury , 121 M.S.P.R. 512 , ¶¶ 18-19 (2014) (remanding a USERRA
appeal when the administrative judge did not adequately apprise the appellant of
3 In his prior appeal, the appellant argued that his first - and second -line supervisors,
who were the proposing and deciding officials in his removal, were motivated by
“anti -military animus.” 0042 IAF, Tab 21 at 8, 23. He observed that his firs t-line
supervisor threatened him for taking leave under the Family and Medical Leave Act to
manage his service -connected post -traumatic stress disorder. Id. at 5 -6. He also
alleged that there were pay inequities between non -veterans and veterans in his office.
0042 IAF, Tab 50 at 27, 29. The allegations raised in the appellant’s prior appeal differ
from the allegations raised in the present appeal.
5
the burdens of proof and the type of evidence necessary to satisfy those burdens);
Davison v. Department of Veterans Affairs , 115 M.S.P.R. 640 , ¶¶ 10-11 (2011)
(discussing the jurisdictional prerequisites for an USERRA appeal). After
affording the parties an opportunity to submit evidence and argument on those
issues , the administrati ve judge shall decide whether the Board has jurisdiction
over this appeal and, if so, adjudicate the merits of this appeal after holding the
requested hearing. See K irkendall v. Department of the Army , 479 F.3d 830 ,
844-46 (Fed. Cir. 2007) (en banc) (explaining that , when an appellant has
established Board jurisdiction over his USERRA appeal , he is entitled to a
hearin g). The administrative judge shall then issue a new initial decision.
ORDER
¶8 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GERMAIN_JEAN_R_NY_4324_21_0117_I_1_REMAND_ORDER_2013031.pdf | 2023-03-20 | null | NY-4324 | NP |
3,385 | https://www.mspb.gov/decisions/nonprecedential/BLAINE_ADA_J_SF_0842_17_0650_I_1_FINAL_ORDER_2012249.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ADA J. BLAINE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0842 -17-0650 -I-1
DATE: March 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ada J. Blaine , Oakland, California, pro se.
Jo Bell , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed an August 4, 2017 final decision issue d by the Office of Personnel
Management denying her request for a deferred annuity under the Federal
Employees’ Retirement System (FERS) because she received a full refund of 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
FERS deductions in 2006 . On review, the appellant asserts that the denial of a
retirement annuity after 17 years of service is inequita ble. Petition for Review
(PFR) File, Tab 1 at 1 -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
adminis trative 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 o r legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the ini tial decision,
which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).3
2 The appellant includes an annotated copy of her FERS Individual Retirement Record
(IRR) with her petition for review. PFR File, Tab 1 at 7 -10. The IRR is already in the
record, and thus is not ne w evidence. Initial Appeal File, Tab 6 at 23 -29; see Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). To the extent that the
appell ant argues for the first time on review that her FERS IRR is inaccurate, PFR File,
Tab 1 at 10, she has failed to show that any inaccuracy is material to the issue in this
appeal, i.e., whether her receipt of a refund of her retirement deductions voids her
entitlement to a FERS annuity. She also attaches to her petition a 2006 Thrift Savings
Plan Form 1099 -R. Id. at 11. She has not shown that this document is new or material ,
and we therefor e need not consider it . See 5 C.F.R. § 1201.115 (d).
3 To the extent that the appellant asserts that her final employing agency coerced her
May 2006 resignation , PFR File, Tab 3 at 1, she may file a constructive rem oval appeal
with the appropriate Board regional office. We make no findings as to whether such an
appeal would be timely filed or within the Board’s jurisdiction . 5 C.F.R.
§ 1201.22 (b)(1), (c) .
3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
state ment of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requireme nts. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If y ou have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board o rder must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www .mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repre sentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below :
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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
Contact information for the courts of appeals can be 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 | BLAINE_ADA_J_SF_0842_17_0650_I_1_FINAL_ORDER_2012249.pdf | 2023-03-17 | null | SF-0842 | NP |
3,386 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_VALERIE_PH_0752_17_0017_I_1_FINAL_ORDER_2012281.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VALERIE JOHNSON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -17-0017 -I-1
DATE: March 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Valerie Johnson , New Haven, Connecticut, pro se.
Kimberly Jacobs , Esquire, Newington, Connecticut, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDE R
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of 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 Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency issued the appellant a decision letter dated August 7, 20 15,
removing her from her position based upon charges of absence without leave
(AWOL) and failure to follow leave procedures. Initial Appeal File (IAF), Tab 7
at 82, 85. The parties subsequently entered into a Last Chance Agreement (LCA),
which provided that the agency would hold the appellant’s removal in abeyance
for a period of 3 years and that evidence of the appellant’s failure to maintain
satis factory conduct, performance, or work habits would constitute a breach of
the agreement and would result in the reinstatement of the removal action without
a right of appeal to the Board . Id. at 79 -81. After the appellant was returned to
work , the agency charged her with AWOL on numerous occasions between
February and August 2016. Id. at 28 -37. Because a charge of AWOL constituted
a violation of the LCA, the agency issued a notice removing the appellant ,
effective September 27, 2016 , for engaging in behavior that violated the LCA .
Id. at 26. The appellant filed an appeal of the removal action. IAF, Tab 1.
3
¶3 Because there appeared to be a question of Board jurisdiction over the
removal action, the administrative judge issued an acknowledgement order that
advised the appellant of her burden regarding a removal in violation of a n LCA.
IAF, Tab 2. The appellan t responded that she was sick, dealing with a medical
condition , and that she did not want to advise management of her health issues.
IAF, Tab 9 at 3. The appellant also asserted below that the agency charged her
with AWOL because her supervisors did not process her request for leave under
the Family and Medical Leave Act of 1993 (FMLA). IAF, Tab 1 at 5, Tab 9 at 3.
The agency filed a response, which included the forms the appellant submitted
requesting FMLA leave and her doctor’s certification for trea tment and prognosis .
IAF, Tab 7 at 19 -25. Without holding the requested hearing, the administrative
judge issued an initial decision finding that the waiver of appeal rights was valid
and that the appellant admit ted to the breach of the LCA. IAF, Tab 10 , Initial
Decision (ID) at 3 -4. The administrative judge found that, although she
sympathized with the appellant’s difficulties, it did not provide a basis for finding
that she had not breached the LCA. ID at 4. The administrative judge also noted
that the FMLA application filed by the appellant on September 26, 2016, included
a doctor’s certification for treatment and prognosis dated August 18, 2016 , which
did not cover the appellant’s 13 instances of AWOL duri ng April and May 2016.
Id.; IAF, Tab 7 at 19-25. Accordingly, the administrative judge dismissed the
appeal for lack of jurisdiction. ID at 4.
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board lacks jurisdiction over an action taken pursuant to an LCA in
which an appellant waives her right to appeal to the Board. Easterling v. U.S.
Postal Service , 110 M.S.P.R. 41, ¶ 12 (2008). To establish that a waiver of
appeal rights should not be enforced, an appellant must show one of the
4
following: (1) she complied with the LCA; (2) the agency materially breached
the LCA or acted in bad faith; (3) she did not voluntarily enter into the LCA; or
(4) the LCA resulted from fraud or mutual mistake. Id.
¶6 On review , the appellant asserts that she did not purposefully breach the
LCA. PFR F ile, Tab 1 at 3. She also reasserts that she requested to be placed on
FMLA leave at the time of the absences resulting in AWOL and that her
supervisor intentionall y never signed off on her FMLA requests . Id.; IAF, Tab 9 .
¶7 We have reviewed the record evidence , and it does not support the
appellant’s claims. Indeed, the record reflects that, even though the appellant was
advised several times that her FMLA application package was not complete, she
did not submit a completed FMLA package to the agency u ntil September 26,
2016, the same date she received the removal notice. IAF, Tab 7 at 19-25, 39-45.
Moreover, as the administrative judge correctly found, the appellant’s doctor’s
certification for treatment and prognosis , dated August 18, 2016, did not cover
April and May 2016, the period of time during which she was AWOL 13 times.
ID at 4; IAF, Tab 7 at 23-24. Accordingly, we find that the appellant has set
forth no basis to disturb the administrative judge’s finding that she breached the
LCA.
¶8 The appellant also argues that she was removed because of her race . PFR
File, Tab 1. This allegation , however, is irrelevant to the dispositive issue, i.e.,
whether the Board may exercise jurisdiction over the removal appeal
notwithstanding the appellant’ s waiver of her appeal rights in the LCA . See
Easterling , 110 M.S.P.R. 41, ¶ 12. Moreover, a bsent an otherwise appealable
action, t he Board lacks an independent source of jurisdiction to adjudicate the
appellant’s discrimination claim . See Wren v. Department of the Army ,
2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982).
Accordingly, we affirm the administrative judge’s dismissal of this appeal for
lack of jurisdiction .
5
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 prov ide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final deci sion, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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:
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.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D) ,” then you may file a 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.usco urts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither en dorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. P ub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_VALERIE_PH_0752_17_0017_I_1_FINAL_ORDER_2012281.pdf | 2023-03-17 | null | PH-0752 | NP |
3,387 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_CHARLES_H_CH_4324_13_0112_B_2_FINAL_ORDER_2011998.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES H. JOHNSON,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER S
CH-4324 -13-0112 -B-2
CH-3443 -13-1466 -B-2
DATE: March 16, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles H. Johnson , Detroit, Michigan, pro se.
David M. Brown and Frances C. Silva , Esquire, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action under the Uniformed Services
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA) and dismissed several other claims for
failure to prosecute . 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
consideri ng the filings in th ese appeal s, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The instant decision involves two separate appeals the appellant filed
against the agency. An administrative judge dismissed the fir st, finding that ,
although the appellant was attempting to challenge his removal, he failed to show
that he was a covered employee within the Board’s jurisdiction. Johnson v.
Department of Commerce , MSPB Docket No. CH -4324 -13-0112 -I-1, Initial
Appeal File (0112 IAF), Tab 8, Initial Decision (0112 ID) at 1, 3 -4. She further
found that , while the appellant alleged discrimination under USERRA, he failed
to meet the corresponding jurisdictional burden. 0112 ID at 1, 4 -5. Another
administrative judge similar ly dismissed the appellant’s second appeal.
Johnson v. Department of Commerce , MSPB Docket No. CH -3443 -13-1466 -I-1,
Initial Appeal File, Tab 7, Initial Decision (1466 ID). That administrative judge
found that , while the appellant challenged the cancellation of his appointments,
3
the Board lacked jurisdiction over the matter because he had not completed a year
of current continuous service in his position. 1466 ID at 2.
¶3 The appellant filed petitions for review i n each of these appeals. Johnson v.
Department of Commerce , MSPB Docket No. CH -4324 -13-0112 -I-1, Petition for
Review File, Tab 1; Johnson v. Department of Commerce , MSPB Docket No.
CH-3443 -13-1466 -I-1, Petition for Review File, Tab 1. On review, the Boar d
joined the appeals and issued a single remand order. Johnson v. Department of
Commerce , MSPB Docket Nos. CH -4324 -13-0112 -I-1 and CH-3443 -13-1466 -I-1,
Remand Order (RO) (Ap r. 22, 2014).
¶4 The Board affirmed the administrative judges’ determination s that t he
Board lacked chapter 75 jurisdiction over the appellant’s adverse action appeals.
RO at 3-5. The Board also denied the appellant’s claim that his termination
constituted a furlough or reduction in force within our jurisdiction, dismissed his
assertion that the Board had jurisdiction over his appeal as a termination for
preemployment reasons, and declined his request to reopen a prior appeal he filed
many years earlier. RO at 5 -6. However, the Board found that remand was
appropriate for other reasons.
¶5 To the extent that the appellant had alleged that the agency denied him a
benefit of employment by failing to credit his military service for purposes of his
service computation date for leave accrual, the Board found that the appellant met
his jurisdicti onal burden for a discrimination claim under USERRA and vacated
the administrative judge’s finding to the contrary. RO at 6 -7. The Board also
found that the appellant did not receive Burgess notice concerning allegations that
appeared to include a Vetera ns Employment Opportunities Act of 1998 (VEOA)
claim, an employment practice claim, and a claim for relief under the Federal
Erroneous Retirement Coverage Corrections Act (FERCCA), in addition to a
possible reemployment claim under USERRA. RO at 7; see Burgess v. Merit
Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (recognizing
4
that an appellant must receive explicit information o n what is required to
establish an appealable jurisdictional issue).
¶6 The Board remanded with instructions to further adjudicate the USERRA
discrimination claim described above and provide Burgess notice for the VEOA,
employment practice, and FERCCA claim s. RO at 8. The Board also indicated
that the administrative judge should determine whether the appellant intended his
allegations to constitute a USERRA reemployment claim. RO at 7 n.5.
¶7 On remand, the administrative judge held a status conference with the
parties, at which time the appellant requested and was granted 30 days to try to
meet his jurisdictional burden. See Johnson v. Department of Commerce , MSPB
Docket No. CH -4324 -13-0112 -B-1, Remand File (0112 -B-1 RF), Tab 3 at 1, 14.
Consequently, the administrative judge issued an order that provided Burgess
notice concerning the VEOA, employment practice, FERCCA, and USERRA
reemployment claims; directed the a ppellant to submit his jurisdictional response
by September 22, 2014; and scheduled a status conference for October 14, 2014.
Id. at 14. The appellant did not submit a timely response, nor did he appear for
the scheduled status conference. 0112 -B-1 RF, Tab 5 at 1.
¶8 In a subsequent order, the administrative judge instructed the appellant to
establish good cause for his failure to respond to the jurisdictional order and his
failure to appear for the status conference. Id. The administrative judge warned
that she would dismiss the appeal for failure to prosecute if the appellant did not
respond by October 29, 2014. Id. at 1-2. Although the appellant submitted a
pleading before that deadline, he did not present good cause arguments.
0112 -B-1 RF, Tab 6. Instead, he requested certification of an interlocutory
appeal. Id.
¶9 The administrative judge denied the appellant’s motion and once again
ordered the appellant to establish good cause, this time by February 16, 2015, or
have his appeal dismissed for fa ilure to prosecute. 0112 -B-1 RF, Tab 8.
Thereafter, the appellant submitted a pleading that was nonresponsive in terms of
5
the administrative judge’s instruction to establish good cause. 0112 -B-1 RF,
Tab 9. As a result, the administrative judge dismisse d for failure to prosecute the
appellant’s possible VEOA, employment practice, FERCCA, and USERRA
reemployment claims. 0112 -B-1 RF, Tab 12 at 1.
¶10 At the appellant’s request, the administrative judge dismissed the remaining
USERRA discrimination claim, with out prejudice, to address the matter with the
Department of Labor. 0112 -B-1 RF, Tab 12 at 1-2, Tab 16. After refiling, the
appellant summarily requested that the administrative judge reconsider the
dismissal of his other claims for failure to prosecute, though he did not submit
any supportive argument, despite being given the opportunity to do so.
Johnson v. Department of Commerce , MSPB Docket No. CH -4324 -13-0112 -B-2,
Refiled Re mand File (0112 -B-2 RRF), Tab 5 at 1, Tab 7 at 2. The administrative
judge d enied that request. 0112 -B-2 RRF, Tab 7 at 2. The appellant also
presented argument that the administrative judge construed as a request that the
Board assert jurisdiction over his case based on the Veterans Benefit s
Improvement Act of 2004 and the Veter ans’ Benefit s Act of 2010. 0112 -B-2
RRF, Tab 3, Tab 9 at 1. The administrative judge also denied that request,
finding that neither provided additional Board appeal rights. 0112 -B-2 RRF,
Tab 9 at 1 -2.
¶11 For the lone remaining claim —a USERRA claim involving allegations that
the agency failed to credit his military service for purposes of determining his
service computation date for leave accrual —the appellant indicated that he did
not want a hearing. 0112 -B-2 RRF, Tab 5 at 1. Accordi ngly, the administrative
judge issued a decision on the written record, denying the request for corrective
action in that claim and reaffirming her prior dismissals for failure to prosecute .
0112 -B-2 RRF, Tab 13, Remand Initial Decision.
¶12 The appellant has filed a petition for review. Johnson v. Department of
Commerce , MSPB Docket No. CH -4324 -13-0112 -B-2, Remand Petition for
6
Review (0112 -B-2 RPFR) File, Tab 1. The agency has filed a response , and the
appellant has replied. 0112 -B-2 RPFR File, Tabs 3, 5.
¶13 A petition for review must contain sufficient specificity for the Board to
ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record. Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92
(1992). Under the Board’s regulations, a petition for review must identify
specific evidence in the record demonstrating any alleged erroneous findings of
material fact and explain why the challenged factual determinations are incorrect.
5 C.F.R. § 1201.115 (a).
¶14 Because the appellant has filed his petition for review pro s e, we have
construed it liberally. Harper v. Office of Personnel Management , 116 M.S.P.R.
309, ¶ 9 (2011). Nevertheless, we are u nable to discern any specific challenges to
the remand initial decision regarding those issues that the Board remanded. The
appellant does not appear to challenge the administrative judge’s decision to deny
corrective action in his USERRA discrimination c laim or her decision to dismiss
the other claims for failure to prosecute.
¶15 Rather than present specific challenges concerning the issues that remained
during the remand proceedings, the appellant alleges that the administrative judge
failed to address al l genuine issues of material fact. 0112 -B-2 RPFR File, Tab 1
at 1-2 (referencing Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587,
589 (1980)). In doing so, he presents several arguments concerning matters that
are altogether different from those that were before the administrative judge on
remand, in what appears to be an attempt to establish Board jurisdiction in some
other con text. For example, the appellant argues that he was “a statutory
‘employee’” and “entitled to all the protections for all purposes of Title 5.”
0112 -B-2 RPFR File, Tab 1 at 2 -3. However, the Board already determined that
the appellant is not an “employe e” with adverse action appeal rights. See supra
¶ 4. We will not reconsider that determination . See Mudrich v. Department of
Agriculture , 93 M.S.P.R. 313, ¶ 2 (200 3) (recognizing that, under the law of the
7
case doctrine, a tribunal generally will not reconsider issues that already have
been decided in an appeal ). The appellant also references various provisions
within 5 U.S.C. § 2302 , suggesting that the agency has committed some sort of
prohibited personnel pr actice and requesting that the Board assert jurisdiction
over this appeal as an individual right of action appeal . 0112 -B-2 RPFR File,
Tab 1 at 6, 10 -13. However, it is well established that section 2302 is not an
independent source of Board jurisdiction . E.g., Belhumeur v. Department of
Transportation , 104 M.S.P.R. 408 , ¶ 11 (2007). While an individual may bring
an individual ri ght of action appeal before the Board in certain contexts,
concerning allegations of retaliation, we found no such allegations here. See
Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 6 (2014) (recognizing that
the Board has jurisdiction over an individual right of action appeal if an appellant
exhausts her administrative remedies before the Office of Special Counsel and
makes nonfrivolous allegations that: (1) she made a protected disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302 (a)).
¶16 The appellant’s petition for review also contains some arguments
concerning veterans’ preference and the agency ’s hiring him into the excepted ,
rather than the competitive , service. 0112 -B-2 RPFR File, Tab 1 at 3-9, 13.
Although this argument is connected to the allegations we previously remanded as
a possible VEOA claim, 0112 IAF, Tab 1 at 1 -10; RO at 7, the appellant has
failed to present any basis for us to disturb the a dministrative judge’s dismissal of
that claim for failure to prosecute , see Williams v. U.S. Postal Service ,
116 M.S.P.R. 377 , ¶ 9 (2011) (recognizing that dismissal for failure to prosecute
is appropriate if an appellant does not exercise basic due diligence by responding
to repeated Board orders).
8
¶17 In sum, although we have considered the appellant’s petition for review, we
are not p ersuaded by any of the arguments he made therein . Without any
particularized arguments concerning the administrative judge’s findings, we will
not undertake further review of the record.3 See Tines , 56 M.S.P.R. at 92.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 We have reviewed the relevant legislation enacted during the pendency of these
appeals and have concluded that it does not affect the outcome of the appeals.
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. A s 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 submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
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, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
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
11
(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 described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 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.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expire d on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appe als
for the Federal Circuit or any other circuit court 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.
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 | JOHNSON_CHARLES_H_CH_4324_13_0112_B_2_FINAL_ORDER_2011998.pdf | 2023-03-16 | null | S | NP |
3,388 | https://www.mspb.gov/decisions/nonprecedential/DONELSON_WESTOVER_KATHLEEN_DE_0845_17_0017_I_1_FINAL_ORDER_2012024.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHLEEN DONELSON -
WESTOVER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0845 -17-0017 -I-1
DATE: March 16, 2023
THIS ORDER IS NONPRECEDENTIAL1
John B. Westover , Fort Collins, Colorado, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
REMAND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
dismissed as untimely filed her appeal of a reconsideration decision issued by the
Office of Personnel Management (OPM) finding that she was overpaid $60,201 in
Federal Employe es’ Retirement System (FERS) annuity benefits . For the reasons
set forth below, we GRANT the petition for review, REVERSE the initial
decision, and REMAND the appeal to the Denver Field Office for adjudication on
the merits .
BACKGROUND
¶2 In an initial decision dated September 15, 2013, OPM informed the
appellant that she had been overpaid $60,201 in FERS retirement benefits. Initial
Appeal File (IAF), Tab 9 at 32. The appellant promptly requested reconsideration
and sought waiver of coll ection of the overpayment. Id. at 28 -30. Nearly 3 years
later, on August 15, 2016, OPM denied the appellant’s reconsideration request
and found that she was not entitled to waiver of collection of the overpayment,
but modified the repayment schedule.3 Id. at 8-11. The letter informed the
appellant that OPM would commence collecting the overpayment unless she
timely filed an appeal with the Board within 30 calendar days from the date of the
letter, or from her receipt of the letter, whichever was later. Id. at 11.
¶3 On September 23, 2016, the appellant filed the instant appeal challenging
OPM’s reconsideration decision and requesting a hearing. IAF, Tab 1. In an
3 In a June 29, 2016 letter, OPM requested updated financial information from the
appellant and provided a Financial Resources Questionnaire for the appellant to
complete and return. IAF, Tab 9 at 21. OPM’s letter indicated that it would issue a
final decision within 30 day s based on the existing documentation if the requested
information was not received within 30 days from the date of the letter. Id. at 21. The
appellant’s response is dated August 1, 2016, and the envelope appears to bear an
August 10, 2016 postmark. Id. at 13, 18 -20. At no point, however, has OPM argued
that the appellant’s response to that letter was not timely submitted. Id. at 13-19.
Nothing in OPM’s letter suggested that issuance of a reconsideration decision was
imminent if the appellant provide d the additional information. Id. at 21.
3
order on timeliness , the administrative judge noted that the filing period began on
August 15 , 2016 (the date of OPM’s reconsideration decision), and that the
appellant did not file her appeal until September 23, 2016, so the appeal appeared
to have been filed 9 days late. IAF, Tab 3 at 2. Accordingly, the administrative
judge ordered the appell ant to file evidence and/or argument demonstrating that
her appeal was timely filed or that good cause existed for her delay in filing. Id.
at 3.
¶4 In response to the timeliness order, the appellant explained that she had
been traveling from August 9 thro ugh August 23, 2016, and that the day after her
return, on August 24, 2016, her husband visited their mailbox at Mail -N-Copy —a
private mail service company the appellant used as her mailing address of
record —and first retrieved OPM’s reconsideration decisi on. IAF, Tab 6 at 4 -5.
She also provided a copy of a restaurant receipt as proof of her departure date and
an airline confirmation document showing her return date.4 Id. at 4, 33 -38. She
argued that, because she did not know that OPM sent its reconside ration decision
to her while she was away from home and she did not receive the decision until
August 24, 2016, her appeal dated September 23, 2016, was timely filed within
30 calendar days of her receipt of the decision. Id. at 5.
¶5 In its response, OPM argued that the appeal should be dismissed as
untimely filed by 4 days. IAF, Tab 9 at 4. In support of its argument, OPM
submitted United States Postal Service (USPS) tracking information reflecting
that the reconsideration decision was delivered on Augu st 19, 2016, at 11:57 a.m.5
4 The appellant provided a receipt from a restaurant approximately 300 miles from her
home as evidence that she commenced her trip on August 9, 2016, and an airline
confirmation document showing that she flew from San Diego, California, to Denver,
Colorado, arriving at 10:59 p.m. on August 22, 2016. IAF, Tab 6 at 4, 33 -38. She
explained in her narrative that, upon arriving in Denver, she took a regional shuttle,
arriving at her home in Fort Collins, Colorado, at around 2:00 a.m. on August 23, 2016.
Id. at 4.
5 OPM also submitted a USPS Certified Mail Receipt, but the writing on the document
is illegible. IAF, Tab 9 at 12.
4
Id. at 6. In a reply to OPM’s response, the appellant conceded that the
reconsideration decision may have been placed in her mailbox at Mail -N-Copy on
August 19, 2016, but argued that she should not be deemed to have received it
until her husband retrieved it from the Mail -N-Copy box on August 24, 2016.
IAF, Tab 10 at 4 -5.
¶6 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal. IAF, Tab 12, Initial Decision
(ID) at 1, 5. He determined that there was no dispute that the appellant’s address
of record was her mailbox at Mail -N-Copy, and that although the appellant may
not have personally received the reconsideration decision until August 24, 2016,
she was “dee med” to have received it when it was placed in her mailbox on
August 19, 2016. ID at 2 -4. Finding that the appellant had not offered any
excuse for the filing delay other than arguing that her appeal was not, in fact,
untimely, the administrative judge d ismissed the appeal as untimely filed without
good cause shown for the delay. ID at 4-5.
¶7 The appellant has filed a petition for review arguing that the ad ministrative
judge misapplied the Board’s regulations and improperly relied on Marcantel v.
Departmen t of Energy , 121 M.S.P.R. 330 (2014), in reaching his decision .
Petition for Re view (PFR) File, Tab 1 at 4 -9. She further argues that OPM’s
delay in responding to her October 11, 2013 reconsideration request was
unreasonably long, and that she could not have anticipated that OPM would issue
its decision nearly 3 years after her reco nsideration request during a brief 14 -day
period while she was traveling out of state. Id. at 9. OPM has filed a response
and the appellant has replied to the response. PFR File , Tabs 4 -5.
ANALYSIS
The Board appeal was timely filed on September 23, 20 16.
¶8 An appeal from an agency ’s action must be filed no later than 30 days after
the effective date of the action being appealed, or “30 days after the date of the
5
appellant ’s receipt of the agency ’s decision, whichever is later. ” 5 C.F.R.
§ 1201.22 (b)(1). Regarding the appellant’s receipt of an agency’s decision, the
Board’s regulations provide that there is a rebuttable presumption that
correspondence that is properly addressed and sent to the appellant’s address of
record via postal or a commercial delivery service is presumed to have been duly
delivered. 5 C.F.R. § 1201.22 (b)(3). While the regulation provides that t here is a
rebuttable presumption of delivery, it further provides that the presumption “may
be overcome under the circumstances of a particular case.” 5 C.F.R.
§ 1201.22 (b)(3). However, service may not be avoided by the appellant’s
intentional or negligent conduct. Id.
¶9 The regulation also provides that an appellant may be “deemed” to have
received an agency’s decision if it was received by a designated representative or
a person of su itable age and discretion residing with the appellant. Id. The Board
has held that w hen a statute or a regulation “deems ” something to have been
done, the event is considered to have occurred whether or not it actually did .
Maurer v. Office of Personnel Management , 84 M.S.P.R. 156 , ¶ 12 (1999), aff’d ,
236 F.3d 1352 (Fed. Cir. 2001) . The regulation provides three examples of
situations in which an appellant may or may not be deemed to have recei ved an
agency’s decision.6 Id. The use of language such as an appellant “ may . . . be
deemed to have received” an agency’s decision and an appellant “ may” overcome
the presumption of receipt, make clear that the Board has the discretion to
determine if t he presumption of delivery should apply in a given case, and thus,
6 In the Federal Register Notice promulgating the 2012 changes to 5 C.F.R.
§ 1201.22 (b)(3), one commenter objected to the use of the examples in the regulations
because they might be read as determinative. 77 Fed. Reg. 62,350, 62,352 (Oct. 12,
2012) (codified at 5 C.F.R. pa rts 1200, 1201, 1203, 1208, and 1209). In response, the
Board explained that the examples were offered only as a means to explain the rule to
pro se litigants and emphasized that the cited circumstances “may” establish the
contested issue. Id.
6
whether the appellant should be deemed to have received the decision on a
particular date.
¶10 Turning to the instant appeal, we agree with the administrative judge that
OPM’s reconsiderati on decision was properly sent to the appellant’s address of
record at her mailbox at the Mail -N-Copy, and that it was received at that location
on August 19, 2016, thereby creating a rebuttable presumption that the appellant
received the reconsideration de cision on that date. ID at 2 -3. We nevertheless
conclude, based on the circumstances of this case, that the appellant has rebutted
the presumption of receipt on August 19, 2016, by providing evidence that she
did not physically receive the reconsideratio n decision until 5 days later when her
husband retrieved it from the Mail -N-Copy mailbox on August 24, 2022.
¶11 Although the administrative judge analogized the appellant’s situation to
that in Marcantel v. Department of Energy , the circumstances of that case are
factually distinguishable from the circumstances here. ID at 3 -4. In Marcantel ,
the Board cited Example A of 5 C.F.R. § 1201.22 (b)(3), which provide s that “[a]n
appellant who fails to pick up mail delivered to his or her post office box may be
deemed to have received the agency decision.” 121 M.S.P.R. 330 , ¶ 9.
Mr. Marcantel was deemed to have received the agency’s removal decision when
the decision was sent to his address of record, which was also his father’s home,
while he was working on an off -shore oil rig, and his fat her signed the certified
mail receipt and received the document on his behalf. Marcantel , 121 M.S.P.R.
330, ¶¶ 2, 6 -7, 9. Mr. Marcantel did not personally receive the removal decision
until he had been back from the oil rig for 9 days, which was 12 days after his
father accepted delivery on his behalf. The Board found his appeal, filed 14 days
after the 30 -day filing period, was untimely filed without good cause for the
delay. Id., ¶¶ 7-12. In declining to find that Mr. Marcantel rebutted the
presumption of constructive receipt as of the date his father signed for the agency
decision, the Board emphasized the language in section 1201.22(b)(3) , stating
that an appellant may not avoid service of a properly addressed and mailed
7
decision through intentional or negligent conduct that frustrates actual service.
Marcantel , 121 M.S.P.R. 330 , ¶ 9.
¶12 Unlike the circumstances in Marcantel in which Mr. Marcantel’s father
signed the certified mail receipt and physically received the decision on his son’s
behalf at his son’s address of record, there is no indication that an employee of
Mail -N-Copy signed for and received OPM’s reconsideration decision on the
appellant’s behalf, and the appellant asserts that no employee of Mail -N-Copy
resides with her. IAF, Tab 9 at 12; PFR File, Tab 1 at 8; see Marcantel ,
121 M.S.P.R. 330 , ¶¶ 2-3, 7. A dditionally, the appellant’s husba nd expeditiously
retrieved OPM’s decision from the ir mailbox the day after their return from the
out-of-state trip. IAF, Tab 6 at 4 -5. Thus, there is no indication that the
appellant engaged in any intentional or negligent conduct that was designed to
frustrate actual service. See 5 C.F.R. §1201.22 (b)(3) . This supports the finding
that the appellant rebutted the presumption of receipt as of the date the
reconsideration decision was pla ced in her mailbox.
¶13 Following the issuance of the initial decision in this appeal and the filing of
most of the pleadings on petition for review, the Board issued its decision in
Little v. U.S. Postal Service , 124 M.S.P.R. 183 (2017). Li ke Marcantel , Little is
also distinguishable from the instant appeal. In Little , the appellant checked his
post office box on January 12, 2016 —the day before the final agency decision
(FAD) on his formal equal employment opportunity complaint was placed in the
post office box.7 Little , 124 M.S.P.R. 183 , ¶¶ 2 -3, 9. He did not check his post
office box again until 4 days later, on January 16, 2016 —3 days after the FAD
had been placed in his post office box. Id., ¶ 9. Mr. Little subsequently filed his
Board appeal on February 13, 2016, and contended that the filing period should
7 Little involved the timeliness of a Board appeal challenging a final agency decision
regarding discrimination filed pursuant to 5 C.F.R. § 1201.154 . Little, 124 M.S.P.R.
183, ¶ 8. However, the date an appellant is deemed to have received the final agency
decision is determined as set for th in 5 C.F.R. § 1201.22 (b)(3), so Little is instructive
here. 5 C.F.R. § 1201.154 .
8
have been calculated based on January 16, 2016, the date that he physically
retrieved the decision from his post office box. Id., ¶¶ 5, 9. In its decision, the
Board again relied on Example A from 5 C.F.R. § 1201.22 (b)(3) to conclude that
the appellant was deemed to have constructively received the agency’s decision
when it was placed in his post office box. Little , 124 M.S.P.R. 183 , ¶¶ 8-9.
¶14 In contrast, the appellant in this case did not return home from her trip until
more than 4 days after the agency decision had been placed in her mailbox. IAF,
Tab 10 at 4 -5, 37 -38; see IAF, Tab 9 at 6. Her husband checked the mailbox on
her behalf the d ay after their return, and she calculated her filing timeline based
on that date. IAF, Tab 10 at 4 -5. Unlike the appellant, who was out of her state
of residence at the time the agency decision was delivered, and who checked her
mailbox at the first avai lable opportunity, Mr. Little had the opportunity to
retrieve the agency’s decision from his P.O. box at any time after it was placed in
his mailbox on January 13, 2016, and so his delay in receiving the agency
decision was the consequence of his own condu ct, driven by considerations of
personal convenience. See 5 C.F.R. § 1201.22 (b)(3) (stating that an appellant
“may not avoid service of a properly addressed and mailed decision by intent ional
or negligent conduct which frustrates actual service ”).
¶15 Additionally, in Little the Board observed that the appellant was under a
“heightened obligation” to monitor his incoming mail, given that an Equal
Employment Opportunity Commission administra tive judge had recently
remanded his case to the agency for issuance of a FAD. Little , 124 M.S.P.R. 183 ,
¶ 3 n.1, ¶ 9 n.2. In th is case, however, the appellant had waited nearly 3 years for
OPM to issue a reconsideration decision and thus she would have had little reason
to expect it during a brief 14 -day window when she was out of state and unable to
retrieve her mail. The last c orrespondence she had received from OPM was a
June 29, 2016 request for an updated Financial Resources Questionnaire, which
made no mention that issuance of a reconsideration decision was imminent,
9
provided that the appellant timely responded with the requ ested information,
which OPM has not argued that she failed to do. IAF, Tab 9 at 21.
¶16 Accordingly, based on the facts of this case, we find that the appellant
successfully rebutted the presumption that she received OPM’s reconsideration
decision on August 19, 2016, and instead established that she did not actually
receive the decision until August 24, 2016. Therefore, t hat is the date that
controls for determining the timeliness of her Board appeal. Consequently, we
conclude that her Board appeal, filed 30 days later on September 23, 2016, was
timely, and the administrative judge erred by dismissing the appeal as untime ly
filed.
Alternatively, the appellant established good cause for the delay in filing her
appeal.
¶17 Even if the appeal was untimely filed based on the date OPM’s
reconsideration decision was placed in the appellant’s mailbox , August 19, 2016,
the appella nt nevertheless established good cause for her untimely filing.8 In
order t o establish good cause for the untimely filing of an appeal, a party must
show that she exercised due diligence or ordinary prudence under the particular
circumstances of the case . Marcantel , 121 M.S.P.R. 330 , ¶ 10; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). In making a good
cause determination, the Board considers the length of the delay, the
reasonableness of the appellant’s excuse and her showing of due diligence,
whether she is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or mi sfortune which similarly
8 Because there is no factual dispute regarding the date the appellant received OPM’s
reconsideration decision and the record is complete on the issue of timeliness, we
discern no need to remand the appeal for a timeliness hearing. Cf. Boyd v. Department
of Veterans Affairs , 111 M.S.P.R. 116 , ¶ 8 (2009) (observing that , when an appellant
requested a hearing and there are factual disputes on the issue of timeliness, the
appellant is ordinarily entitled to a timeliness hearing).
10
shows a causal relationship to his inability to timely file her appeal . Moorman v.
Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d 79 F.3d 1167 (Fed.
Cir. 1996) (Table); see Little , 124 M.S.P.R. 183 , ¶ 10.
¶18 Even if the appellant were deemed to have received the decision as of the
date it was placed in her mailbox on August 19, 2016 , the appellant’s 5 -day filing
delay is not particularly lengthy. See White v. Department of Justice ,
103 M.S.P.R. 312 , ¶ 10 (2006) (noting that a 5 -day delay is “not particularly
lengthy”), aff’d , 230 F. App’x 976 (Fed. Cir. 20 07); Brown v. Office of Personnel
Manage ment , 86 M.S.P.R. 417 , ¶ 8 (2000) (finding the appellant’s 5 -day refiling
delay to be “relatively de minimis”). Additionally, the appellant provided a
reasonable excuse for her filing delay, i.e., that she interpreted the filing deadline
set forth in OPM’s reconsideration decision according to its literal requirements
and calculated the filing period based on the date that she physic ally received the
reconsideration decision. IAF, Tab 1 at 11, Tab 6 at 5. Further, as described
above, the delay was due to circumstances beyond the appellant’s control,
namely, she was unable to access her mail box for several days because she was
trave ling out of state. Given the particular circumstances of this case, we find
good cause for the appellant ’s filing delay.
11
ORDER
¶19 Accordingly, we remand the appeal to the Denver Field Office for further
adjudication consistent with this Remand Order, including the hearing the
appellant requested.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DONELSON_WESTOVER_KATHLEEN_DE_0845_17_0017_I_1_FINAL_ORDER_2012024.pdf | 2023-03-16 | null | DE-0845 | NP |
3,389 | https://www.mspb.gov/decisions/nonprecedential/FARRINGTON_KIM_ANNE_AT_1221_09_0543_B_2_FINAL_ORDER_2011579.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIM ANNE FARRINGTON,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
AT-1221 -09-0543 -B-2
DATE: March 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephanie L. Ayers , Esquire, and Thad M. Guyer , Esquire, Medford,
Oregon, for the appellant.
Elizabeth J. Head , 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
denied corrective action in this individual right of action appeal. On petition for
review, the appellant makes the following arguments: (1) the statute at 5 U.S.C.
§ 2302 (f)(2) does not apply to her because her disclosures were not made 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
normal course of her duties; (2) she proved that her disclosures were a
contributing factor in the agency’s decision to take various personnel actions
against her; (3) the agency abandoned its laches defense and the administrative
judge erred in her analysis of this issue; and (4) she was prejudiced by the
administrative judge’s delay in issuing the initial decision and her credibility
determinations were erroneous . Farrington v. Department of Transportation ,
MSPB Docket No. AT -1221 -09-0543 -B-2, Petition for Review (PFR) File,
Tab 27. 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 the 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 avail able when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 After fully considering the filings in this appeal, we conclude that t he
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. We MODIFY
the initial decision to find that 5 U.S.C. § 2302 (f)(2) applies to this matter
because the appellant’s disclosures were made in the normal course of her duties .
We VACATE the administrative judge’s findings regarding laches and the
agency’s burden to prove by clear and convincing evidence t hat it would have
taken the actions absent the appellant’s whistleblowing disclosures . Except as
expressly modified herein, we AFFIRM the initial decision.2
2 The Association of Flight Attendants -Communications Workers of America requested
leave to file an amicus curiae brief in support of the appellant. PFR File, Tab 16. The
Board, in its discretion, may grant such a request if the organization has a legitimate
3
The statute at 5 U.S.C. § 2302 (f)(2) ap plies to this appeal because the appellant
made her disclosures in the normal course of her duties , and we agree with the
administrative judge that the appellant did not prove that the agency took the
personnel actions against her in reprisal for her discl osures.
¶3 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA) , an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence that
(1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D),3
and (2) the whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take, fail to take, or threaten to take or fail to
take, a personnel action against her. 5 U.S.C. § 1221 (e)(1); Webb v. Department
of the Interior , 122 M.S.P.R. 248 , ¶ 6 (2015). If the appellant ma kes out a prima
facie case, the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
whistleblowing disclosure (s). 5 U.S.C. § 1221 (e)(2); Webb , 122 M.S.P.R. 248 ,
¶ 6.
¶4 Prior to the WPEA’s enactment, disclosures made in the normal course of
an employee’s duties were not protected. Salazar v. Department of Veterans
Affairs , 2022 MSPB 42 , ¶¶ 10-12. However, under a provision of the WPEA
codified as 5 U.S.C. § 2302 (f)(2), such disclosures are protected if the appellant
shows that the agency took a personnel action “in reprisal for ” the disclos ures.
interest in the proceedings, and such participation will not unduly delay the outcome
and may contribute materially to the proper disposition thereof. 5 C.F.R.
§ 1201.34 (e)(3). We find that an amicus curiae brief from the Association of Flight
Attendants will not materially contribute to the proper disposition of this matter, and we
deny its request.
On December 30, 2022, th e appellant filed a motion for leave to file a new pleading,
which appears to be a request to expedite processing of this matter. PFR File, Tab 44.
Because this order is a final decision in this matter, we deny the appellant’s motion.
3 This appeal does not involve protected activity as set forth in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D).
4
Id., ¶ 10 (citing 5 U.S.C. § 2302 (f)(2) ). This provision impose d an “extra proof
requirement” for these types of disclosures s uch that an appellant to whom
5 U.S.C. § 2302 (f)(2) applies must prove by preponderant evidence that the
agency took a personnel action because of th e disclosure and did so with an
improper, retaliatory motive. Id., ¶ 11 (discussing S. Rep. No. 112 -155, at 5-6
(2012)) .
¶5 The National Defense Authorization Act for Fiscal Year 2018 (2018
NDAA), signed into law on December 12, 2017, amended 5 U.S.C. § 2302 (f)(2)
to provide that disclosures “made durin g th e normal course of duties of an
employee, the principal job function of whom is to regularly investigate and
disclose wrongdoing,” are protected if the employee demonstrates that the agency
“took, failed to take, or threatened to take or f ail to take a personnel action” with
respect to that employee in reprisal for the disclosure. Salazar , 2022 MSPB 42 ,
¶¶ 13-14; Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017) .
As we held in Salazar , 2022 MSPB 42 , ¶¶ 15-21, the 2018 NDAA’s amendme nt
to 5 U.S.C. § 2302 (f)(2), which clarified the prior version of that statute enacted
in the WPEA, applies retroactively to appeals pending at the time the statute was
enacted.
¶6 The administrative judge found that the appellant , as an Aviation Safety
Inspector who was responsible for ensuring compliance with Federal Aviation
Administration r egulations and investigating and reporting wrongdoing, was
covered by 5 U.S.C. § 2302 (f)(2). Farrington v. Department of Transportation ,
MSPB Docket No. AT -1221 -09-0543 -B-2, Remand File, Tab 38, Initial Decision
(ID) at 13-14, 17. The administrative judge, in analyzing the “extra proof
requirement” regarding each personnel action, appears to have implicitly found
that each of the appellant’s four disclosures were made during the normal course
of her duties. ID at 29 -40. On review, the appellant contends that the case is
governed by the Board’s earlier decision in Farrington v. Department of
Transportation , 118 M.S.P.R. 331 (2012), and its finding that “there was no duty
5
speech .” PFR File, Tab 27 at 26. We supplement the initial decision to explicitly
find that the appellant made her disclosures in the normal course of her duties.
¶7 In its earlier decision, the Board relied on the ap pellant’s position
description and conclud ed that she failed to make a nonfrivolous allegation that
her disclosures to the National Transportation Safety Board ( NTSB ) were not
made within her normal job duties within the normal channels of reporting.
Farrington , 118 M.S.P.R. 331, ¶ 9. The appellant’s position description stated
that, as part of her surveillance duties and responsibilities, she is expected to
“conduct investigations of . . . aircraft incidents and accidents” and to
“[p]articipate[] in cabin safety related incident/accident i nvestigations of air
carriers and air operators.” Farrington v. Department of Transportation , MSPB
Docket No. AT -1221 -09-0543 -W-1, Initial Appeal File (IAF), Tab 19, Subtab B
at 1-2. The NTSB is an independent Federal agency charged with “investigating
every civil aviation accident in the United States,” it determines the probable
cause of accidents, and it issues safety recommendations aimed at preventing
future accidents. National Transportation Safety Board, About the NTSB ,
https://www.ntsb.gov/about/pages/default.aspx (last visited Mar. 1 4, 2023). The
appellant provided the head of the NTSB Survival Factors Group with a copy of
her May 2003 written report and she was interviewed by the NTS B Survival
Factors Group after the NTSB initiated its investigation into the March 26, 2003
AirTran incident. Based on these facts, we supplement the initial decision to find
explicitly that the appellant’s two disclosures to the NTSB were made within the
normal course of her duties.
¶8 We now turn to the two disclosures that the appellant made to the Division
Manager, including (1) the May 2003 written report, which discussed, among
other things, lack of management support and funding approval, complaints a bout
training at AirTran facilities , and inability to perform surveillance activities, and
(2) her meeting with the Division Manager following an “All Hands” meeting on
June 17, 2003 (for which the Division Manager took some handwritten notes). ID
6
at 18 -20; IAF, Ta b 19, Subtabs F, H. In its Opinion and Order, the Board noted
that there was a material dispute of fact concerning whether the appellant’s
communications to the Division Manager followed typical customs and practices
in the workplace for reporti ng regulatory and safety issues to higher -level
management. Farrington , 118 M.S.P.R. 331, ¶ 8. The Board defined “normal
chan nels” as when an “employee conveyed duty -related information to a
recipient, who in the course of his or her duties, customarily receives the same
type of information from the employee and from other employees at the same or
similar level in the organizati on as the employee.” Id., ¶ 6. The Board identified
some of the factors that were relevant to the determination, including whether the
communication complies with the formal and informal customs and practices in
the employee’s workplace for conveying such information up the chain of
command, whether the organization enforces a strict hierarchical chain of
command requiring that commu nications must go through lower -level supervisors
before being elevated to higher management, and whether the information was
conveyed to the recipient in the organization’s commonly accepted manner or
method for presenting such information for management consideration. Id.
¶9 The appellant’s position description stated that she would have “frequent
contact” with, among othe r groups, “field and regional office management” and
that the “purpose of these contacts is to . . . provide feedback, communicate
findings, or resolve issues and problems.” IAF, Tab 19, Subtab B at 2. It is
undisputed that the Division Manager was the a ppellant’s fourth - or fifth -level
supervisor, Farrington , 118 M.S.P.R. 331, ¶ 8, and the information that she
disclosed in the written report and subsequent meeting with the Division Manager
was information that she learned during the normal course of her duties. On
review, the appellant cites to the Division Manager’s testimony that he had an
“open door policy,” but she was neve r told that she had a duty to provide the
Division Manager with the written report or speak to him after the June 17, 2003
meeting. PFR File, Tab 27 at 12, 15. In her deposition, the appellant testified
7
that she never spoke to the Division Manager prior to sending him the May 2003
report and she had never gone to him on a work -related issue. IAF, Deposition,
Subtab 10 at 276 (testimony of the appellant). However, she acknowledged that ,
when there was a disagreement at the local level about an issue , the issue was
elevated, and she does not appear to dispute the testimony of the Division
Manager and the Assistant Division Manager that it was common for Aviation
Safety Inspectors to work through local managers or to raise directly issues to the
regional le vel. IAF, Deposition , Subtab 1 at 12 (testimony of the Division
Manager), Subtab 7 at 3 (testimony of the Assistant Division Manager) ,
Subtab 10 at 277 (testimony of the appellant).
¶10 Concerning the May 2003 written report, the appellant acknowledged in h er
deposition that she raised issues that she had attempted to pursue through her
normal supervisory channels. IAF, Deposition, Subtab 10 at 276 (testimony of
the appellant) . The Assistant Division Manager responded in writing to the
appellant’s May 2003 report to the Division Manager, she acknowledged the
safety issues that the appellant raised involving AirTran and her concerns about
her own work environment, and she described the steps that the agency was
taking to investigate these concerns. IAF, Tab 19, Subtab G. Given that the
content of the May 2003 report was information that she learned during the
course of her duties as an Aviation Safety Inspector, she provided the report to
someone in her chain of command, it was a common practice for aviatio n safety
inspectors to elevate disagreements on such issues to a higher level, and the
agency’s formal response to her concerns, we find that the appellant’s May 2003
written report to the Division Manager was made in the course of her normal
duties throug h normal reporting channels.
¶11 Concerning the June 17, 2003 meeting, the Division Manager’s handwritten
notes from this meeting included references to, among other things, “no crew
8
members trained hands on” with an arrow and the citation “121.417.”4 IAF,
Tab 19, Subtab H. The appellant on review cites her testim ony that she reported
to the Division Manager that her findings and recommendations were not being
addressed, that flight attendants had not been trained on the proper tail cone exit,
and that passen gers were at risk. PFR File, Tab 27 at 12. Thus, the appellant
discussed with the Division Manager during this meeting her concerns based on
information that she learned as an Aviation Safety Inspector. Neither party
disputes that the Division Manager h eld regular “All Hands” meetings in the field
offices, and he would often invite Aviation Safety Inspectors to speak with him
afterwards, he had an “open -door policy,” and Aviation Safety Inspectors
“[r]outinely” took advantage of his open -door policy to s peak to him about
various issues. IAF, Deposition, Subtab 1 at 10-12, 17 -18 (testimony of the
Divis ion Manager). Given that the appellant’s conversation with the Division
Manager occurred in the workplace, after a meeting in which the Division
Manager invited Aviation Safety Inspectors to speak with him privately
afterwards, the content of their conversation focuse d on work -related issues, and
her position description contemplates such communications with field and
regional office managers, we find that any disclosures made to him during this
meeting were made during the normal course of her duties through normal
reporting channels. Because we have found that all of the appellant’s disclosures
were made in the normal course of her duties as an Aviation Safety Inspector , the
statute at 5 U.S.C. § 2302 (f)(2) a pplies to this matter.
¶12 Even if we assume for the purposes of our analysis that the appellant proved
that she disclosed a violation of law, rule, or regulation and/or a substantial and
specific danger to public health and safety pursuant to 5 U.S.C. § 2302 (b)(8)(A) ,
we agree with the administrative judge that the appellant failed to prove that the
agency took the personnel actions against her in reprisal for her disclosures. ID
4 The regulation at 14 C.F.R. § 121.417 discusses crewmember emergency training.
9
at 29 -40. Because w e affirm the administrative judge’s finding in this regard, we
need not address the appellant’s arguments on review concerning contributing
factor or whether the agency proved by clear and convincing evidence that it
would have taken the action(s) at issue absent the disclosure s. PFR File, Tab 27
at 28; see Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 28 (2016)
(finding that it was inappropriate for the administrative judge to determine
whether the agency proved by clear and convincing evidence that it would have
denied the appellant’s access to restricted areas and classified documents in the
absence of his whistle blowing when she found that he failed to prove his prima
facie case). To the extent that the administrative judge made findings about
laches that relieved the agency of its obligation to prove by clear and convincing
evidence that it would have taken the same actions absent the appellant’s
disclosures, ID at 41-45, we vacate the administrative judge’ s findings in this
regard .
The appellant’s arguments regarding the quality of the hearing recording, the
administrative judge’s credibility determinations, and her delay in issuing the
initial decision do not warrant a different outcome.
¶13 The appellant contends on review that the administrative judge’s “extreme”
delay in issuing the initial decision “severely prejudiced” her and violated her due
process rights, Board procedures, and statutory mandates. PFR File, Tab 3 at 6,
Tab 27 at 5. In pertinent part, she asserts that she was prejudiced because the
audio recording from the 2 -day hearing in 2013 was inaudible and that due to the
delay in issuing the initial decision, the original court reporter passed away, the
original court reporting company dissolved, and there was no usable audio
recording of the hearing. PFR File, Tab 27 at 5 -6. The submissions on review
describe the parties’ efforts to jointly contra ct with another court reporter to
generate a transcript of the hearing under these circumstances. E.g., PFR File,
Tabs 1, 3, 5, 7, 9, 11. The Office of the Clerk of the Board subsequently granted
the appellant’s motion to file transcripts of the hearing proceedings. PFR File,
10
Tabs 20, 22. However, instead of filing the transcripts in their entirety, the
appellant reprinted excerpted portions of the 2013 hearing transcript in her
supplemental petition for review. PFR File, Tab 27 at 12 -26.
¶14 We acknowle dge that the audio recording of the 2013 two -day hearing is
virtually inaudible. The appellant’s arguments on review do not persuade us that
she was prejudiced by the delay between the close of the record and the date that
the initial decision was issued. For instance, she asserts on review that the initial
decision should be disregarded because it “barely contains any purported quotes
of testimony,” and “has few if any references to some witnesses,” and she
requests that the Board review the administrati ve judge’s “harsh” credibility
findings. Id. at 7. However, the administrative judge who issued the initial
decision is the same administrative judge who was present during the 2 -day
hearing in 2013. The administrative judge’s credibility determinations are
implicitly based on witness demeanor, Little v. Department of Transportation ,
112 M.S.P.R. 224, ¶ 4 (2009), and the appe llant’s disagreement with the
administrative judge’s findings, without more, is insufficient to overcome the
deference to which such determinations are entitled. See, e.g. , Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (explaining
that the Board must give “special deference” to an administrative judge ’s
demeanor -based credibil ity determinations, “[e]ven if demeanor is not explicitly
discussed”); Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir.
2002) (sta ting that t he Board must give deference to an administrative judge ’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinatio ns only when it has “sufficiently sound” reasons for
doing so ). Importantly, t he appellant does not contend that the administrative
judge was incapacitated or otherwise unable to take notes during the hearing or
observe the testimony of witnesses, which m ight call her credibility
determinations into question, nor does the appellant provide any authority to
11
support her assertion that the administrative judge erred by failing to include any
quoted testimony.
¶15 We have reviewed the exce rpts of the 2013 hearin g transcript , which largely
involve testimony concerning the appellant’s disclosures, various agency
officials’ knowledge of the disclosures, circumstances surrounding some of the
personnel actions, and the clear -and-convincing factors. E.g., PFR File, Tab 27
at 12-26. However, the excerpted testimony does not change our analysis of
whether any of the appellant’s disclosures were made in the normal course of her
duties through normal channels or whether she proved that the agency took the
personnel acti ons in reprisal for her disclosures.
¶16 Finally, to the extent that the appellant may be arguing that her rights were
harmed by the virtual inaudibility of the hearing tapes, we disagree. In Harp v.
Department of the Army , 791 F.2d 161 , 163 (Fed. Cir. 1986), the U.S. Court of
Appeals for the Federal Circuit rejected a petitioner’s claim that the
unavailability of a hearing transcript constituted ha rmful error per se, requiring
reversal of the Board’s decision. The court found that “such loss is not fatal” to
the court’s ability to review a Board appeal. The court analyzed several factors to
determine whether a fatal flaw occurred, such as whether the appellant
established that he was prejudiced by the loss of the hearing transcript, whether
the appellant showed that the administrative judge failed to consider or misused
any particular testimony from the hearing, and whether other evidence existed i n
the record that would support the administrative judge ’s findings. Id.; see also
Kemp v. Department of Veterans Affairs , 154 F. App’x 912, 914 (Fed. Cir.
2005)5; Henderson v. Office of Personnel Management , 109 M.S.P.R. 529, ¶ 5 n.1
(2008) . Here, we find that the appellant did not show that she was prejudiced by
the virtual inaudibility o f the hearing tapes and she did not demonstrate that the
5 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive . Morris v. Department of the Navy , 123 M.S.P.R. 662 ,
¶ 13 n.9 (2016).
12
administrative judge failed to consider or misused any particular testimony of the
witnesses that might have caused a different result in this case. Furthermore,
although some or all of the hearing tapes may have been virtually inaudible, the
record in this case was sufficiently developed to provide a meaningful review of
the issues raised by the appellant.6
NOTICE OF APPEAL RIG HTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outco me 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 appropriate in any matter.
13
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals 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
14
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 t han 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) a nd 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
15
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.8 The court of appeals must receive your
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
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.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, 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
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 | FARRINGTON_KIM_ANNE_AT_1221_09_0543_B_2_FINAL_ORDER_2011579.pdf | 2023-03-15 | null | AT-1221 | NP |
3,390 | https://www.mspb.gov/decisions/nonprecedential/REEVES_LAURA_G_DA_0752_12_0048_X_1_FINAL_ORDER_2011659.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAURA G. REEVES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -12-0048 -X-1
DATE: March 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laura G. Reeves , Athens , Texas, pro se.
Patrick A. Keen , Shreveport, Louisiana , for the agency .
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 On August 24, 2017, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the administrative judge’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
March 15, 2012 initial decision , which dismissed the appellant’s removal appeal
based on a settlement agreement. For the reasons discussed below, we find the
agency in compliance and DISM ISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 The agency removed the appellant effective October 9, 2011, and she filed a
timely appeal with the Board. Reeves v. Department of Veterans Affairs , MSPB
Docket No. DA -0752-12-0048 -C-1, Compliance File (CF), Tab 8, Compliance
Initial Decision (CID) at 2. During the pendency of her appeal, the appellant and
the agency entered into a settlement agreement which provided, in relevant part,
that the agency would cancel the re moval action; replace the Standard Form
(SF) 50 in the appellant’s Official Personnel File (OPF) showing t hat the
appellant was removed with an SF -50 showing that she resigned; expunge all
trace s of the removal action from her OPF ; pay the appellant $75,00 0; and pay the
appellant’s attorney $17,000. CID at 2; Reeves v. Department of Veterans
Affairs , MSPB Docket No. DA -0752 -12-0048 -I-1, Initial Appeal File (IAF),
Tab 11. The administrative judge entered the settlement agreement into the
record for enforce ment purposes and dismissed the appeal. IAF, Tab 12, Initial
Decision . The initial decision became the final decision of the Board after neither
party petitioned for review.
¶3 On June 22, 2017, the appellant filed a petition for enforcement of the
settleme nt agreement and the March 15, 2012 decision, asserting that the agency
had failed to remove from her OPF the SF -50 showing the removal action and
failed to substitute an SF -50 showing that she resigned. CF, Tab 1 at 3 , Tab 6
at 1. On August 24, 2017, th e administrative judge issued a compliance initial
decision finding that the agency had breached the settlement agreement by failing
to expunge references to the removal from the appellant’s OPF and failing to
replace the removal SF -50 with an SF -50 showin g that the appellant had resigned.
CID at 4. The administrative judge ordered the agency to “ensure that the
3
appellant’s official personnel file reflects a resignation and is purged of all
reference to the removal action and provide an SF -50 reflecting t he removal3 to
the appellant and to the Board.” Id. The administrative judge further ordered the
appellant to inform the Board whether she sought specific performance of the
settlement agreement or complete rescission of the agreement. CID at 4-5. The
administrative judge informed the appellant that if she sought rescission, she
would be required to repay any funds disbursed pursuant to the settlement
agreement (i.e., the $75,000 payment to her and the $17,000 payment to her
attorney). Neither party filed any submission with the Clerk of the Board within
the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to 5 C.F.R.
§ 1201.183 (b)-(c), the administrative judge’s findings of noncompliance became
final, and the appellant’s petition for enforcement was referred to the Board for a
final decision on issues of compliance. Reeves v. Department of Veterans Affairs ,
MSPB Docket No. DA -0752 -12-0048 -X-1, Compliance Referral File (CRF),
Tab 2.
¶4 On September 6, 2017, the appellant filed a pleading titled “Proposal for
Settlement and Request for Specific Performance.” CRF, Tab 1. Thereafter, the
appellant filed four submissions which, like her September 6, 2017 filing, stated
that the agency had failed to compl y with the settlement agreement and sought
specific performa nce of the settlement agreement, but also appeared to seek to
renegotiate the sett lement agreement by proposing new terms (including
restoration to duty, payment of back pay, and payment of additional funds beyond
those specified in the settlement agreement). CRF, Tab 3 at 3 ,4 Tab 6 at 3 -4,
Tab 7 at 3 , Tab 10 at 13 -14, 37 -38. The appe llant also contended that the agency
3 We believe the instruction to provide an SF -50 reflecting a removal is a typographical
error. In context, it is clear that the administrative judge intended to require an SF -50
reflecting the appellant’s resignation , and it is clear that the parties interpreted the
instruction consistent with its intent rather than its l iteral language.
4 The appellant also filed an additional pleading which appears to be an exact duplicate
of Tab 3. CRF, Tab 4.
4
had not complied with the original settlement agreement “in whole” because its
compliance evidence addressed only the resignation issue, and not whether it had
paid her the funds specified in the agreement. CRF, Tab 6 at 4.
¶5 On October 12, 2017, the agency submitted a pleading purporting to show
compliance with the instructions set forth in the compliance initial decision.
CRF, Tab 5 at 4 -7.
ANALYSIS
¶6 A settlement agreement is a contract, and the appellant, as the
non-breaching party, bears the burden to prove “material noncompliance” with a
term of the contract. Lutz v. U.S. Postal Services , 485 F.3d 1377 , 1381 (Fed. Cir.
2007). The agency must produce relevant and material evidence of i ts
compliance with the agreement. Haefele v. Department of the Air Force ,
108 M.S.P.R. 630 , ¶7 (2008). Upon prov ing a material breac h of the contract, the
appellant may choose between specific performance or rescission of the
settlement agreement. Sanchez v. Department of Homeland Security ,
110 M.S.P.R. 573 , ¶7 (2009); Powell v. Department of Commerce , 98 M.S.P.R.
398, ¶14 (2005).
¶7 As a preliminary matter, although the appellant’s submissions attempt to
impose new financial and equitable obligations on the agency, it does not appear
that she is challenging the administrative judge’s compliance initial decision
because she has requested sp ecific performance of the original settlement
agreement. E.g., CFR, Tab 1 at 4 , Tab 3 at 3, Tab 6 at 4. In view of this request,
and because the appellant has no basis or authority to impose additional
obligations on the agency beyond those established in the existing settlement
agreement, we decline to enter the appellant’s new “terms” into the record for
enforcement. Rather, we now proceed to determine whether the agency’s
pleading establishes compliance with the existing settlement agreement.
¶8 In the compliance initial decision, the administrative judge ordered the
agency to submit evidence that it had replaced the removal SF -50 with an SF -50
5
showing that the appellant had resigned and to expunge all references to the
removal from the appellant’s OP F. CID at 4. The agency’s October 12, 2017
submission states that “as of August 17th[, 2017], the resignation had been
removed from appellant’s personnel file.” CRF, Tab 5 at 4. The agency did not
include a sworn affidavit or declaration attesting to t his claim, but the agency
submitted such an affidavit during the compliance proceeding before the
administrative judge. CF, Tab 7 at 9 (attesting that the electronic OPF had been
“recoded” to reflect resignation rather than termination).5 In addition, t he agency
submitted a copy of an SF -50 showing that the appellant had resigned, which it
stated had been placed in her personnel file. Id. at 5, 6.
¶9 In her submission s responding to the agency’s evidence, the appellant did
not challenge the agency’s eviden ce regarding the resignation issue . Instead, she
claimed that the agency remained noncompliant with the settlement agreement
because it “only discussed the resignation, not the agreement as a whole.” E.g.,
CRF, Tab 6 at 4.6 But the resignation issue was the sole claim raised by the
appellant in her petition for enforcement. CF, Tab 1 at 3 , Tab 4 at 3 , Tab 6 at 1.
If the appellant now wishes to challenge other aspects of the agency’s compliance
with the agreement, such as its payments to her or to her attorney, she must file a
new enforcement proceeding with the appropriate regional office.
¶10 We find that the agency has submitted evidence of compliance which the
appellant has failed to rebut. We therefore find the agency in compliance wit h
the settlement agreement and the final order in the underlying case, and DISMISS
5 It appears that the administrative judge did not consider this evidence, possibly
because it was submitted after the record c losed and, indeed, was submitted on the same
day the compliance initial decision was issued. See CF, Tab 6 at 2 (the record closed
on August 18, 2017); CID (Aug. 24, 2017).
6 In her May 2, 2019 submission, the appellant claimed that the agency “has not
complied with any of the Judges[sic] orders.” CRF, Tab 7 at 3. But the appellant
offered no specific information to rebut the agency’s evidence of compliance and, as
discussed above, her previous submission appeared to concede that the agency had
complie d.
6
the petition for enforcement. We DENY the appellant’s other non -substantive
submissions, such as her request that the petition for enforcement be transferred
to a federal c ourt for resolution. CRF, Tab 11. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Bo ard does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review o f this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen f orum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
8
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 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
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 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.8 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 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.
8 The o riginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, per manently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circ uit 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 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 | REEVES_LAURA_G_DA_0752_12_0048_X_1_FINAL_ORDER_2011659.pdf | 2023-03-15 | null | DA-0752 | NP |
3,391 | https://www.mspb.gov/decisions/nonprecedential/KIRKLEY_SHELIA_Y_PH_0752_16_0404_I_1_FINAL_ORDER_2011673.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHELIA Y. KIRKLEY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-0752 -16-0404 -I-1
DATE: March 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheri L. Cannon , Esquire, and John D. Vena, II , Esquire, Washington,
D.C., for the appellant.
Jeffrey C. Dozier , Esquire, Fort Meade, 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
affirmed her removal from her Supply Management Specialist position based on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
the charge of inappropriate conduct. 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).
¶2 In her petition for review, the appellant argues that her represent ative did
not adequately represent her, that the administrative judge believed a coworker’s
testimony because she cried during her testimony, and that agency managers did
nothing when another coworker made threatening statements to the appellant .
Petition for Review (PFR) File, Tab 1 . The appellant’s claim of inadequate
representation does not constitute a basis for reversal of the initial decision.
Sparks v. Department of the Interior , 62 M.S.P.R. 369 , 371 (1994). Even if true,
the presence of inadequate counsel is not a basis for reversal because the
appellant is held responsible for the action or inaction of her chosen counsel. Id.;
Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981) (stating that the
appellant is responsible for the errors of his chosen representativ e). Further, the
appellant has provided no support for her assertion that the administrative judge
was influenced by the accusing coworker’s tears. Additionally, the appellant has
presented no evidence to show that her perception of the agency’s response to the
3
alleged threatening behavior by a coworker is relevant to determining whether the
agency met its burden to prove the charge and the reasonableness of the penalty.3
¶3 In a supplement to her petition for review, the appellant also argues that the
admi nistrative judge erred in finding that the appellant’s removal would affect the
efficiency of the service and that he misapplied the Douglas factors4 in finding
that the penalty of removal was within the bounds of reasonableness.5 PFR File,
Tab 6.
¶4 Regar ding the appellant’s assertion that her removal did not promote the
efficiency of the service, she contends that the actions she is alleged to have
taken are not miscondu ct. PFR File, Tab 6 at 14 -16. These allegations , however,
must be taken in context , as the administrative judge explained in the initial
decision .
¶5 The administrative judge found that the deciding official misapplied the
Douglas factors, and thus his penalty determination was not entitled to deference ,
and therefore the administrative judge had to determine the maximum reasonable
3 The appellant also argued that her supervisor was rude to her and h er union
representative when giving her a memorandum on December 28, 2015, but she does not
explain the nature or purpose of that memorandum or the relevancy of her argument to
the removal appeal. On review, the appellant includes a number of emails that
compliment her performance. PFR File, Tab 1 at 9 -25. Under 5 C.F.R. § 1201.115 , the
Board generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the reco rd was closed despite
the party’ s due diligence. Avansino v. U.S. Postal Service , 3 M.S. P.R. 211 , 214 (1980).
The appellant has not shown that the emails, which predate the close of the record
below, were previously unavailable despite her due diligence.
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in an
adverse action.
5 To the extent that the appellant is arguing that the administrative judge erred by
referencing her failure to testify at the hearing or to speak with the agency official who
investigated the charges against her, she has not shown error. PFR File, Tab 6 a t 13;
Initial Appeal File, Tab 29, Initial Decision (ID) at 5 ; see, e.g. , Cole v. Department of
the Air Force , 120 M.S.P.R. 640 , ¶ 3 n.1 (2014) (noting by way of background that the
appellant did not testify at the Board hearing) . The administrative judge did not draw
an adverse inference from the appellant’ s actions and simply noted the fact s. ID at 5.
4
penalty . Initial Appeal File (IAF) , Tab 29, Initial Decision (ID) at 12. The
administrative judge properly reviewed the agency -imposed penalty and
considered all of the relev ant Douglas factors implicated by the facts of the
appellant’s case to determine whether the penalty was within the tolerable limits
of reasonableness. See Pinegar v. Federal Election Commission , 105 M.S.P.R.
677, ¶ 53 (2007) (stating that the 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); Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 306 (1981) . The administrative judge considered
the seriousness of the offense , its relations hip to the appellant’s duties, position ,
and responsibilities,6 that the misconduct was intentional and repeated , that the
appellant previously had received a 5 -day suspension for similar misconduct , that
the appellant’s supervisors had lost confidence in her ability to perform her
duties, and that the penalty of removal was consistent with the agency’s table of
penalties for a second offense.7 ID at 14-15. The administrative judge also
considered as mitigating factors the appellant’s 32 years of service and
satisfactory job performance. ID at 15 .
6 As the administrative judge foun d, belligerent and rude behavior would be
disqualifying for an individual who serves as a contact point for both customers and
coworkers. ID at 14 . The appellant’s assertion that she was not such a contact point is
contradicted by her posi tion descriptio n, which states that the incumbent has the
responsibility to plan, organize, coordinate, and advise on purchasing and contracting
efforts. IAF, Tab 8 at 14 -20.
7 The appellant argues that the administrative judge failed to address the consistency of
the penalty with that imposed on other employees for the same offense and that the
administrative judge erred by not finding fault with the deciding official’s failure to
research the consistency of the penalty. PFR File, Tab 6 at 26. When analyzing
disparate penalty claims, broad similarity between employees is insufficient to establish
that they are appropriate comparators . The relevant in quiry is whether the agency
knowingly and unjustifiably treated employees differently. Singh v. U.S. Postal
Service , 2022 MSPB 15, ¶¶ 10-14. Here, the appellant failed to meet her evidentiary
burden of proof for this claim.
5
¶6 We agree with the administrative judge that , considering all of the relevant
factors, the penalty of removal for the appellant ’s misconduct does not ex ceed the
tolerable limits of reasonableness. Regarding the appellant’s argument that the
administrative judge did not consider all of the Douglas factors, the Board has
recognized that not every factor is relevant to a particular case. See Nagel v.
Depar tment of Health and Human Services , 707 F.2d 1384 , 1386 (Fed. Cir. 1983)
(“The [B]oard never intended that each [Douglas ] factor be applied mechanically,
nor did it intend mandatory consideration of irrelevant factors in a particular
case.”); Douglas , 5 M.S.P.R. at 306 (stating that not all of the factors will be
pertinent in every case, and it must be borne in mind that the relevant factors are
not to be evaluated mechanistically).
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims de termines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wis h to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your cas e by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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 i n the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, y ou
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial 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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
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 F ederal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 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 | KIRKLEY_SHELIA_Y_PH_0752_16_0404_I_1_FINAL_ORDER_2011673.pdf | 2023-03-15 | null | PH-0752 | NP |
3,392 | https://www.mspb.gov/decisions/nonprecedential/ACOSTA_DANIEL_SF_0752_16_0732_I_1_FINAL_ORDER_2011687.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL ACOSTA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -16-0732 -I-1
DATE: March 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shirley Jasper , Los Angeles, California, for the appellant.
Catherine V. Meek , Long Beach, California, for the agency .
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction , finding that he had violated
a last chance settlement agreement and waived his right to appeal . On petition for
review, the appellant again references the Family and Medical Leave Act of 1993
(FMLA) , as well as regulations promulgated pursuant to the FMLA , and he
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contr ibuting to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
submits a form in which he apparentl y made a request for FMLA leave. Petition
for Review File, Tab 1 at 3 -4, 12 13.2 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, secti on 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 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
2 The appellant has failed to raise a nonfrivolous allegation of Board jurisdiction . His
bare references to the FMLA, witho ut the assertion of pertinent facts, do not meet the
nonfrivolous pleading standard. See Lara v. Department of Homeland Security ,
101 M.S.P.R. 190 , ¶ 7 (2006) (stating that p ro forma allegations are insufficient to meet
the nonfrivolous standard ); see also Bahrke v. U.S. Postal Service , 98 M.S.P.R. 513 ,
¶ 18 (2005) (noting that the appellant did not argue that he provided notice sufficient to
make the agency aware that he needed FMLA -qualifying leave prior to his submission
of medical documentation ).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later th an 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appoint ed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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
4 The original statuto ry provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide 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.
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 the ir
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 | ACOSTA_DANIEL_SF_0752_16_0732_I_1_FINAL_ORDER_2011687.pdf | 2023-03-15 | null | SF-0752 | NP |
3,393 | https://www.mspb.gov/decisions/nonprecedential/FORSYTH_JAMES_J_NY_0752_16_0246_I_1_FINAL_ORDER_2011691.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES J. FORSYTH,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
NY-0752 -16-0246 -I-1
DATE: March 15 , 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan F. Tylar , Esquire, Garden City, New York, for the appellant.
Navid Mehrjou , Esquire, New York, New York, 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
materia l fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
chief administrative judge’s rulings during either the course of the appeal or the
initial d ecision were not 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 conclu de 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 May 19, 2015, the agency assigned the appellant, a GS -08 Contact
Representative for the agency’s Internal Revenue Service, to take incoming
telephone calls from taxpaye rs. Initial Appeal File (IAF), Tab 1 ; Tab 8,
Subtab 4b; Tab 33 at 4. Before he received his first telephone call of the day, the
appellant called the Howard Stern radio show using his personal cell phone and
was placed on hold. IAF, Tab 33 at 4. At 8:0 0 a.m., the appellant began
answering taxpayer telephone calls and , at 10:09 a.m., the show apparently took
the appellant off hold and , as a result , began to broadcast audio of the appellant
on a telephone call with a taxpayer. Id. During the broadcast, he revealed the
taxpayer’s telephone number and the amount of back taxes due to the
Government. Id. Sometime after Mr. Stern began to yell the appellant’s name
into the telephone to get his attention, the appellant placed the taxpayer on hold
to speak wi th the cast of the show . Id.
3
¶3 In this appeal of the appellant’s subsequent removal based on the charge of
disclosure of a taxpayer’s personally identifiable information (PII), t he appellant
stipulated to the above facts, as well as to the accuracy and ve racity of the audio
file of the above -described broadcast, which the agency submitted as an exhibit in
this matter. Id.; IAF, Tab 8, Subtabs 4a -4d; Tab 31 (audio reco rding of Howard
Stern Show, May 19, 2015). After holding a hearing, the chief administrative
judge issued an initial decision affirm ing the removal. IAF, Tab 40, Initial
Decision (ID). He sustained the agency’ s charge, citing the appellant’s
stipulations to the specified misconduct , and determined that the appellant failed
to show that the agency violated his right to due process , finding that the agency
gave him proper notice of the factors it considered in selecting the penalty and
did not consider any ex parte information in deciding to remove him. ID at 9-21.
The chief admini strative judge further found that the agency established a clear
nexus between the appellant’s misconduct and the efficiency of the service , and
that, although harsh, the penalty did not fall outside the bounds of reasonableness .
ID at 21-37.
¶4 The appell ant has filed a petition for review in which he challenges th e
reasonableness of the penalty, citing the apparent death of a child and the end of
an engagement as mitigating factor s.3 Petition for Review (PFR) File, Tab 1 at 4.
The agency responds in opp osition to the appellant’s petition for review. PFR
File, Tab 3.
3 The appellant has not challenged the chief admini strative judge’s finding s that the
agency proved the charge and nexus and that the appellant failed to prove his due
process claim, and we discern no basis to disturb th ese finding s on review.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The chief administrative judge properly concluded that the removal penalty does
not exceed the bounds of reasonableness.
¶5 Whe n the agency’ s charge is sustain ed, the Board will review the
agency‑imposed penalty to determine if the agency considered all of the relevant
factors and exercised management discretion within tolerable limits of
reasonableness. Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272 , ¶ 20
(2001 ). The Board has articulated factors to be considered in determining the
propriety of a penalty, suc h as the nature and seriousne ss of the offense, the
potential for the employee’s rehabilitation , the consistency of the penalty with the
agency’ s table of penalties, the consistency of the penalty with those imposed on
other employees for the same or simil ar offense , and any mitigating
circumstances surrounding the offense . Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (198 1). Not all of the factors will be pertinent in every
instance, and therefore , the relevant factors must be balanced in each case to
arrive at the appropriate penalty. Id.
¶6 Here, the chief administrative judge reviewed the pertinent aggravating and
mitigating Douglas factors, first noting the direct relation of the appellant’s
misconduct to his duties and responsibilities , and the “utter recklessness” of his
behavior. ID at 23 -25. Regarding the consistency of the penalty with those
imposed upon others, the chief administrative judge found that the appellant’s
misconduct was significantly different from the other identified employees who
violated the agency’s strictures against the disclosure of PII, in that those
employees had electronically transmitted information containing PII in an
unauthorized manner but to individuals authorized to receive such information,
whereas here, the appellant verbally broadcasted a taxpayer’s PII nationwide on a
satellite radio program. ID at 26 -27. The chief administrat ive judge also cited
the notoriety of the offense, noting the potential size of the audience exposed to
the taxpayer’s PII, the news coverage of the event, and the controversial nature of
5
the show itself. ID at 27 -28; see Black v. Department of the Air Force ,
29 M.S.P.R. 133 , 137 (1985) (finding that media attention concerning an
appellant’s misconduct supported removal); Douglas , 5 M.S.P .R. at 305 (stating
that the notoriety of the offense or its impact upon the agency ’s reputation is a
factor to be considered) . Regarding the agency’s table of penalties, which set
forth a penalty range of a written reprimand to a 14 -day suspension for th e
careless, reckless, or negligent disclosure of PII, IAF, Tab 8, Subtab 4f at 11, the
chief administrative judge found that, in light of the egregiousness of the
appellant’s misconduct, the deciding official did not abuse her discretion in
deciding to exc eed the table of penalties and remove the appellant, ID at 28 -31.
¶7 As for the effect of the appellant’s misconduct on his supervisors’
confidence and his potential for rehabilitation, the chief administrative judge
found the appellant’s expressed contriti on hard to reconcile with the record. ID
at 31. For example, rather than immediately summoning his supervisor, as he had
asserted in his oral reply to the agency’s notice of proposed removal, the
appellant instead “gleefully” kept talking on the air, ide ntifying himself as a
Government employee even after it became obvious that he had broadcast the
taxpayer’s PII, and then denying that he had done so to the taxpayer herself even
though she told him that her friends had alerted her to the disclosure via te xt
message. ID at 31 -32; IAF, Tab 31. The chief administrative judge also found
the appellant’s contrition “half -hearted at best,” in part because , when he called
the show after the incident to ask that they not rebroadcast the exchange, he also
asked fo r a tour of the show’s broadcast studio. ID at 32. He further found that
the appellant was clearly on notice that he should not disclose taxpayers’ PII, that
his 8 years of service without discipline was not significantly mitigating under
the circumstanc es, and that, because the record showed that the deciding official
duly considered the relevant facts and pertinent Douglas factors, the record
showed no reason for him not to defer to the agency’s choice of penalty. ID
at 33-37.
6
¶8 On review, t he appellant asserts that the fact that he lost a child and ended
his engagement should be considered as mitigating factors. PFR File, Tab 1
at 3‑4. However, he does not provide any details regarding the circumstances
surrounding these events or how they relate to his misconduct , except to s tate that
he “sought happiness in [his] subconscious by calling into this show to bring back
[his] smile .” Id. at 4. The record shows that the appellant did not include this
contention in his oral reply to the agency’s notice of proposed removal , IAF,
Tab 8, Subtab 4c, nor does it appear that he raised this issue in his appeal below.
Thus, the record reflects that neither the deciding official nor the chief
administrative judge failed to consider these mitigati ng circumstances when
considering the penalty , and the appellant therefore has set forth no basis to
disturb the initial decision . Furthermore , the Board generally will not consider an
argument raised for the first time in a petition for review absent a s howing that it
is based on new and material evidence not previously available despite the party ’s
due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
(1980). The appellant makes no such showing here .
¶9 The appellant also challenges the chief administrative judge’s conclusion
that he failed to show that he was subjected to disparate treatment by vaguely
claiming that “others have committed crimes knowingly and kept their jobs.”
PFR File, Tab 1 at 4. However, we agree with the well ‑reasoned and explained
findings of the chief administrative judge that the appellant failed to show that
there was enough similarity between his misconduct and that of his purported
comparators to lead a reasonable person to conclude that the agency treated
similarly situated persons differently. ID at 25 -28. Specifically , the appellant
conceded that he disclosed the taxpayer’s PII —the telephone number and amount
of tax owed —on a nationwide satellite radio program , whereas his purported
comparators merely transmitted PII via an insecure method but to authorized
recipients . IAF, Tab 26 at 5. We find, under these circumstances , that t he chief
7
administrative judge properly concluded that the appellant failed to show that
these individuals committed the same or similar offense for purposes of a
disparate treatment analysis .4 ID at 25 -28; see Douglas , 5 M.S.P.R. at 305.
¶10 Finding that the appellant has shown no error in the deciding official ’s and
the chief administrative judge ’s analyses un der Douglas , we affirm the initial
decision.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 In adjudicating the appellant’s disparate penalty claim, the chief administrative judge
cited to Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 , ¶¶ 5, 12, 15 (2010).
ID at 25 & n.19. In Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 10-17, we
overruled Lewis to find that, when analyzing disparate penalty claims, br oad similarity
between employees is insufficient to establish that they are appropriate comparators,
and to reaffirm that the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees who engaged in the same or similar offenses d ifferently.
Nevertheless, the chief administrative judge’s reference to the standard set forth in
Lewis was not prejudicial in this case because he properly found that the appellant
failed to meet even that less onerous standard . ID at 27.
5 Since the is suance of the initial decision in this matter, the Board may have updated
the notice 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
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows a ppellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | FORSYTH_JAMES_J_NY_0752_16_0246_I_1_FINAL_ORDER_2011691.pdf | 2023-03-01 | null | NY-0752 | NP |
3,394 | https://www.mspb.gov/decisions/nonprecedential/FENSTERMACHER_PATTI_PH_0752_16_0469_I_1_FINAL_ORDER_2011732.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATTI FENSTERMACHER,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
PH-0752 -16-0469 -I-1
DATE: March 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sigmund Kozierachi , Philadelphia, Pennsylvania, for the appellant.
Jennifer L. Bluer , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Me mber2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary retirement 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 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
Generally, we grant petitions such as this one only in the following
circumstance s: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s ruling s during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is av ailable that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code 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 September 30, 2014, the appellant retired from her position as a
GS-7 Economic Assistant. Initi al Appeal File (IAF), Tab 17 at 79. Thereafter,
she filed a formal complaint of discrimination alleging that the agency
discriminated against her and subjected her to a hostile work environment that
forced her to retire. IAF, Tab 7 at 20 -33. The agency’ s Civil Rights Center
issued a final agency d ecision (FAD) dated August 15, 2016, finding that the
appellant failed to establish that the agency subjected her to unlawful disparate
treatment or a hostile work environment based on age, disability, or prior equal
employment opportunity (EEO) activity and failed to establish that her retirement
amounted to a constructive discharge. IAF, Tab 6 at 21 -82, Tab 7 at 4 -18. The
FAD notified the appellant of her right to appeal her alleged constructive
discharge to the Board, and this appeal timely followed. IAF, Tab 1, Tab 7 at 18 .
3
¶3 The administrative judge issued a jurisdictional order informing the
appellant that the Board lacks jurisdiction over voluntary actions, such as
retirements , and ordering 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 2 at 2-3. In response, the
appellant alleged that, from 2012 through September 2014 , her supervisor and the
Assistant Commissioner of the Bureau of Labor Statistics (Assistant
Commissioner) engaged in a series of events that made her working conditions
intolerable and forced her to retire. IAF, Tab 23 at 4 -7. T he agency moved to
dismis s the appeal for lack of jurisdiction. IAF, Tab 8.
¶4 The administrative judge issued an initial decision finding that the appellant
failed to nonfrivolously allege that her retirement was involuntary. IAF, Tab 26,
Initial Decision (ID) . Therefore, he de nied her request for a hearing and
dismissed the appeal for lack of jurisdiction. ID at 4. The appellant has filed a
petition for review of the initial decision and a supplement to her petition for
review , the agency has responded in opposition , and the appellant has replied to
the agency’s response . Petition for Review (PFR) File, Tabs 1, 3 -5.3
3 The appellant requested and received a 30 -day extension of time to file a supplement
in support of her petition for review. PFR File, Tab 1 at 4, Tab 2 at 1. Thereafter, she
timely filed a supplemental petition for review, which includes 52 pages of documents
dated between 2010 and 2014 . PFR Fi le, Tab 3 at 17 -69. The Board generally will not
consider evidence submitted for the first time on review absent a showing that the
documents and the information contained in the documents were unavailable before the
record closed despite due diligence, and that the evidence is of sufficient weight to
warrant an outcome different from that of the initial decision. See Cleaton v.
Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015 ), aff’d, 839 F.3d 1126 (Fed. Cir.
2016); 5 C.F.R. § 1201.115 (d). Here, the a ppellant has not alleged or shown that the
documents, which all predate the November 5, 2016 close of the record, were
unavailable below or that they are material to the dispositive issue on review . IAF,
Tab 2 at 3, Tab 4; PFR File, Ta bs 1, 3, 5 . Therefo re, we do not consider them for the
first time on review.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Generally, the Board lacks the authority to review an employee’s decision
to resign or retire , as these decisions are presumed to be voluntary act s. 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 or retirement , 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). An employee may overcome
the presumption of voluntariness by showing that her resignation or retirement
was the product of misinformation or deception by the agency, or of coercive ac ts
by the agency, such as intolerable working conditions or the unjustified threat of
an adverse action. SanSoucie v. Department of Agriculture , 116 M.S.P.R. 149 ,
¶ 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 juri sdiction by a preponderance of
the evidence.4 Vitale , 107 M.S.P.R. 501 , ¶ 18.
¶6 When, as here, an employee alleges that intolerable working conditions
forced her to retire , the Board will find her retirement 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 positi on
would have felt compelled to retire . Id., ¶ 20. The doctrine of coerced
involuntariness is “a narrow one” and does not apply if the employee retires
because she “does not want to accept [measures] that the agency is authorized to
adopt, even if those me asures make continuation in the job so unpleasant . . . that
[she] feels that [she] has no realistic option but to leave.” Staats v. U.S. Postal
Service , 99 F.3d 1120 , 1124 (1996). The touchstone of the “voluntariness”
4 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more lik ely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
analysis 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 her formal EEO complaint and her response to the administrative
judge’s order on jurisdiction, the appellant alleged that her supe rvisor and the
Associate Commissioner created intolerable working conditions from 2012
through 2014 by, among other things : finding that she failed a November 6, 2012
“Commodities and Services Observation” (observation); harassing her about
failing the ob servation; informing her 7 months later in May 2013 that she had
not actually failed the observation; rating her at an “effective level” on her
2012 -2013 annual performance review; failing to timely reimburse her for travel
expenses and damages sustained t o her vehicle while on work duty ; delaying her
promotion; questioning her travel vouchers, sick leave, and overtime usage ;
admonishing her on one occasion for not informing her supervisor in advance that
she would be taking sick leave ; placing her on two “ unofficial” performance
improvement plans (PIP); violating her reasonable accommodation that allowed
her to work from home by instructing her to code housing units that she was
unable to personally visit as “unable to contact” instead of reassigning them t o
another employee, which negatively affected her production record; overloading
her with work; causing a reduction in the number of hours she was available to
work without reducing her workload on one occasion; postponing an EEO
meeting because it would h ave caused her to go into overtime; and subjecting her
to two investigative interviews . IAF, Tab 7 at 20-33; Tab 23 at 4 -7. She further
alleged that all of the agency’s actions were di scriminatory and retaliatory and
created a hostile work environment . IAF, Tab 7 at 20 -33.
¶8 In the initial decision, the administrative judge found that the appellant’s
allegations of a distasteful work environment, personal conflicts with supervisors,
and a sluggish bureaucratic agency that was slow to respond to her requests did
not amount to a nonfrivolous allegation of intolerable work conditions. ID
6
at 9-10. In particular, he noted that, although the appellant was frustrated by
delays in correcting a purported error in her 2012 observation and in processing
her reimbursements and promotion, she ultimately received the outcome she
sought and that there was no evidence that the delays were a tactic used by the
agency to force her into retirement. ID at 10. He further found that her apparent
discontent with work assignments and i nstructions from her supervisors did not
force her to retire . ID at 10-11. In addition, the administrative judge found that
the appellant’s allegations of discrimination based on age and disability and
retaliation fo r prior protected activity did not raise a nonfrivolous allegation o f
involuntariness. ID at 12-13. Thus, the administrative judge found that the
appellant failed to make a nonfrivolous allegation that her retirement was
involuntary . ID at 1 4. On revie w, the appellant challenges these findings and
argues again that the previously described series of events establish es that her
retirement was involun tary.5 PFR File, Tabs 1, 3, 5. For the reasons that follow,
we find no basis to disturb the administrati ve judge’s well -reasoned determination
that the appellant has failed to nonfrivolously allege intolerable working
conditions that would have compelled a reasonable person to retire.
¶9 An employee is not guaranteed a stress -free working environment. Brown ,
115 M.S.P.R. 609 , ¶ 15 ; Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32
(2000). Dissatisfaction with work assignments, a feeling of being unfairly
criticized, or difficult or unpleasant working conditions are generally not so
intolerable as to compel a re asonable person to resign or retire . Brown ,
115 M.S.P.R. 609 , ¶ 15 ; Miller , 85 M.S.P.R. 310 , ¶ 32 . Thus , the appellant’s
5 The appellant also argues on review that the administrative judge mischaracterized the
basis of her discrimination and retaliation claim, her position title, and her retirement
date. PFR File, Tab 3 at 5 -7. We have considered these allegations but find that they
provide no basis to disturb the initial decision. See Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision) .
7
allegations of an inconvenient and unpleasant work environment —such as
management “overl oading” her with work, failing to timely process her
reimbursements and correct her observation, postponing a meeting, and
questioning her regarding he r use of sick leave, overtime, and travel vouchers —
do not evince the type of intolerable working conditio ns that would compel a
reasonable person to retire . See Brown , 115 M.S.P.R. 609 , ¶ 15 . Likewise, her
dissatisfaction with certai n work assignments and instructions by her supervisor,
such as directing her to code specific housing units as “unable to contact ,” rather
than reassigning them to another employee, do not render her working conditions
intolerable. Id.
¶10 The appellant’s allegations that the agency coerced her retirement by giving
her an “effective” performanc e rating, delaying a promotion to which she
believed she was entitled , and placing her on “unofficial” PIPs also fail to
establish a nonfrivolous allegation of involu ntariness. It is well settled that a
retirement is not involuntary if the employee had a choice of whether to retire or
to contest the validity of the agency action. See Garcia v. Department of
Homeland Security , 437 F.3d 1322 , 1329 (Fed. Cir. 2006) (en banc) ( quoting
Christie v. United States , 518 F.2d 584 , 587 (1975)). Moreover, “the fact tha t an
employee is faced with an unpleasant situation or that [her] choice is limited to
two unattractive options does not make [her] decision any less voluntary.”
Staats , 99 F.3d at 1124 . Here, the appellant’s choice between cha llenging her
performance rating, the delayed promotion , and the alleged unofficial PIPs
through the appropriate channels or retiring did not render her ultimate choice to
retire involuntary. Id. Likewise, the appellant’s contention that her su pervisor
forced her to code certain housing unit visits as “unable to contact,” rather than
reassigning them, which could have negatively affected her production rate , does
not establish intolerable working conditions because she could have chosen to
chall enge any resulting agency action based on such production issues rather than
retiring. Id.; Holman v. Department of the Treasury , 9 M.S.P.R. 218 , 220 (1981)
8
(concluding that fear of a possible future adverse action did not rebut the
presumption of voluntariness).
¶11 In addition, the appellant’s alle gation that she was forced to atte nd two
investigative interviews, at which her supervisor and another individual
“interrogated” her, does not constitute a nonfrivolous allegation of
involuntariness. See Baldwin v. Department of Veterans Affairs , 109 M.S.P.R.
392, ¶¶ 19-20 (2008) (finding that an appellant’s allegation that the agency
subjected him to, among other things, “unwarranted investigations” did not
constitute a nonfrivolous allegation of involuntariness ). Moreover, her all egation
that she was “interrogated” during these investigative interviews is vague and
unsupported and, therefore, is insufficient to constitute a nonfrivolous allegation
of involuntariness. 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).
¶12 Lastly, as the administrative judge correctly found, the appellant’s
allegations that the agency’s actions were retaliatory or discriminatory are
insufficient on their own to establish that her retirement was involuntary. ID
at 10. The Board addresses di scrimination and reprisal allegations in connection
with an alleged involuntary retirement only insofar as t hey relate to the issue of
voluntariness, i.e., whether, under all of the circumstances, the agency made the
appellant ’s working conditions so diffi cult that a reasonable person in her
position would have felt compelled to retire . Vitale , 107 M.S.P.R. 501 , ¶ 20.
Here, the appel lant’s allegation that the agency acted in a retaliatory or
discriminatory manner, even if true, does not establish that the agency engaged in
9
a course of conduct that made her working conditions so difficult that a
reasonable person in her position would have felt compelled to retire .6
¶13 In light of the foregoing, we find that the administrative judge properly
dismissed this appeal for lack of jurisdiction without holding the appellant’s
requested hearing.
NOTICE OF APPEAL RIG HTS7
You may obtain review of th is final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and th e rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and care fully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide w hich one applies to your particular case. If you have questions
6 On review, the appellant argues for the first time that the agency retaliated against her
for alleged disclosures in 2013 and June 2014 . PFR File, Tab 1 at 10, Tab 3 at 6, 13.
The Board generally will not consider an argument raised for th e first time in a petition
for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of the Air
Force , 4 M.S.P.R. 268 , 271 (1980). The appellant has made no such showing here.
PFR File, Tab 1 at 10, Tab 3 at 6, 13. Moreover, her allegations of whistleblower
reprisal do not establish that the agency coerc ed her retirement and, therefore, would
not warrant a different outcome in this appeal. See Vitale , 107 M.S.P.R. 501 , ¶ 20.
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.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appel lant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is ap pealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriat e U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
webs ites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportu nity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial p etition 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 fil e a 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 de cision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
8 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | FENSTERMACHER_PATTI_PH_0752_16_0469_I_1_FINAL_ORDER_2011732.pdf | 2023-03-15 | null | PH-0752 | NP |
3,395 | https://www.mspb.gov/decisions/nonprecedential/GREENLEE_AMY_M_DC_0831_17_0119_I_1_FINAL_ORDER_2011284.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMY M. GREENLEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -17-0119 -I-1
DATE: March 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amy M. Greenlee , Washington, D.C., pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying her application for a deferred annuity under the Civil Service Retirement
Systems (CSRS) bec ause her contribution refund already had been properly
released to her employing agency to satisfy an outstanding debt . 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 consiste nt with required
procedures or 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 r ecord
closed. Title 5 of the Code 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 ha s 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 separated from her former employing agency, the U.S. Postal
Service, on June 22, 1989. Initial Appeal File (IAF), Tab 5 at 10. On August 14,
2000, the appellant applied for a refun d of her retirement contributions , which
totaled $847.37. Id. at 13-15. However, because the appellant had an outstanding
debt for past -due health benefit premiums owed to her former employing agency
totaling $1,001.31, OPM released the f unds to the empl oying agency to satisf y the
3
debt, after receiving a recertification confirming that the debt remained
outstanding. Id. at 10, 16 -17.
¶3 The appellant filed for a deferred CSRS annuity with OPM b y an
application dated September 8, 2016 . Id. at 7 -9. In a final decision dated
October 14, 2016, OPM den ied the appellant ’s request, determining that her
August 14, 2000 contribution refund request had been paid to her former
employing agency to satisfy a debt , voiding her right to an annuity, and because
she was not a current employee , she was not eligible to redeposit her refunded
retirement contribution s. Id. at 5; see 5 U.S.C. §§ 8342 (a)(2), 8334(d)(1).
Subsequently, o n November 14, 2016, the app ellant filed the instant Board appeal
challenging OPM ’s final decision. IAF, Tab 1. Following the appellant ’s
withdraw ing her request for a hearing, IAF, Tab 15 at 1, the administrative judge
issued an initial decision affirming the agency ’s action denyi ng the appellant ’s
request for a deferred annuity, IAF, Tab 16, Initial Decision (ID) at 2, 6.
¶4 The appellant has timely filed a petition for review . Petition for Review
(PFR) File, Tab 2. OPM has filed a response opp osing the petition for review.
PFR File, Tab 5 .
DISC USSION OF ARGUMENTS ON REVI EW
¶5 In her petition for review, the appellant argues that she was not provided
with adequate notice of the debt ’s existence prior to OPM ’s releas ing the funds to
the agency to satisfy her debt . PFR File, Tab 2 at 4. Additionally, the appellant
argues that when she filed for her contribution refund , there were additional
notice requirements regarding collecting health benefit premium debt that the
administrative judge failed to consider, and the appellant attaches an OPM letter
dated October 16, 1996 , purporting to detail these additional requirements. Id.
at 3, 7-19. Finally, the appellant argues that the “CFR as written in 1989 -2000 ”
should have been applied. Id. at 3.
4
¶6 Under OPM ’s regulat ions, creditor -agencies seeking to collect a debt by
offsetting a retirement contribution refund ordinarily must comply with certain
debt collection processing rules, including providing written notice to the debtor
concerning the existence and amount of t he debt , as well as providing the debtor
with the opportunity to review age ncy records related to the debt and to enter into
a written agreement with the agency to repay the debt . 5 C.F.R. § 831.1805 (b).
However, under 5 CFR § 831.1805 (b)(4)(i) , creditor -agencies that seek to collect
a debt for unpaid premiums for health insurance benefits are exempted from the
normal debt collection processing rules and requirements if they can demonstrate
that they have followed specific procedures approved by OPM .
¶7 As the administrative judge noted, OPM submitted the request it received
from the appellant ’s creditor -agency dated November 2, 1989, entitled “Request
for Offset for Past -Due Health Benefit Premiums From Monies Payable Under the
Civil Service Retire ment System ” (OPM Form 1522), which was signed by a
creditor -agency official certifying the existence of the outstanding debt at the
time of the appellant ’s separation . IAF, Tab 5 at 26. OPM also submitted the
creditor -agency ’s debt recertification reque st, which OPM approved on
September 18, 2000, and which identifies that the full retirement contribution
amount of $847.37 would be released to the creditor -agency to satisfy the
appellant’s outstanding debt. Id. at 16. The recertification also ce rtifies that the
creditor -agency sent a notice to the appellant stating its intention to seek offset
for the debt on August 13, 1989, and that by October 31, 1989, the agency had
received no response in opposition to that notice. Id. Based on this documentary
evidence, the administrative judge concluded that the record demonstrated that
OPM properly forwarded the appellant ’s retirement contributions to the
5
creditor -agency to satisfy her outstanding debt , and she has not submitted any
evidence that would warrant disturbing this conclusion on review.3
¶8 The app ellant also argues that the administrative judge erred by failing to
apply the correct version of the regulations applicable to her case. PFR File,
Tab 2 at 3. Specifically, the appellant attaches a copy of an OPM Benefits
Administration Letter dated October 16, 1996 , that provides instructions for
implementing int erim regulations concerning collecti ng past-due Federal
Employees Health Benefits (FEHB) premiums . PFR File, Tab 2 at 7; see 5 C.F.R.
§ 890.502 (b). Citing the guidance provided in the letter, the appellant argues that
the administrative judge should have applied the 1996 version of OPM’s
regulatio n—5 C.F.R. § 890.502 (b)—stating that there were “significant changes
to the policy and practices of OPM relating to the collection of health benefit
premiums debts, ” as well as “different notice requirements ” when the appellant
requested her benefits contr ibution refund. PFR File, Tab 2 at 3, 7-23. The
appellant also argues, generally, that the administrative judge should have applied
“[t]he CFR as written in 1989 -2000, ” including the relevant notice provisions. Id.
at 3.
3 In reaching this conclusio n, the administrative judge cited Bacani v. Office of
Personnel Management , 64 M.S.P.R. 588 , 592 -94 (1994) for the pr oposition that the
Board do es not have the authority to review OPM ’s reliance on an employing agency ’s
certified Individual Retirement Record ( IRR). ID at 3 -4. However, Bacani was
subsequently overruled by the Board in Conner v. O ffice of Personnel Management ,
120 M.S.P.R. 670 , ¶ 6 (2014), aff’d, 620 F . App’x 892 (Fed. Cir. 2015), which held that
the Board does have the authority to review the accuracy and completeness of IRRs in
the context of appeals of OPM final decisions that rely on them. Nonetheless , this error
was harmless and does not alter our conclusion . The administrative judge thoroughly
reviewed the documentary recor d, including the submitted IRR, and determined that
there was nothing in the record to suggest that the employing agency ’s collecti ng the
funds to satisfy the debt was improper . ID at 4 -5; Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error that was not
prejudicial to a party’s substantive rights provided no basis for r eversing an initial
decision) .
6
¶9 As an initial matter , the OPM Benefits Administration Letter provided by
the appellant is an informational letter issued by OPM and not an enacted
provision of the Code of Federal Regulations and is not ultimately relevant to
OPM’s den ying her contribution refund request in this case . Id. at 7-19. Second,
the version of 5 C.F.R. § 890.502 (b) (1997) provided by the appellant was not
enacted until 1997, several years after she incurred her FEHB premium s debt in
1989. PFR File, Tab 2 at 25 -29; IAF , Tab 5 at 16.
¶10 Nonetheless, we have reviewed the version of 5 C.F.R. § 890.502 that was
effective when the appellant incurred the debt in 1989, and nothing in that
provision would warrant reaching a different result. 5 C.F.R. § 890.502 (b)
(1989). Specifically, 5 C.F.R. § 890.502 (b) (1989) primarily addresses when and
how employee FEHB premiums are withheld from employee pay. Both the 1989
and 2017 versions of the relevant regulat ion provide that, if an individual incurs a
debt resulting from unpaid FEHB premiums that cannot be repaid from salary, the
creditor -agency may recover the debt from whatever other sources are normally
available for the recovery of a debt owed to the Unite d States. Compare 5 C.F.R.
§ 890.502 (b)(3) (1989) , with 5 C.F.R. § 890.502 (b)(2) (2017). Significantly, the
1989 version of the regulations does not describe any additional substantive
restrictions on OPM’s authority to release retirement contributions to a
creditor -agency to satisfy debts than those that exist in the 2017 regulations.4 The
2017 version of the regulation set s forth procedures and notice requirements that
a creditor -agency must follow before collecti ng such a debt that are not present in
the 1989 regulations , but the administrative judge applied the more exacting 2017
regulati ons, and we see no reason to disturb her findings based on this stricter
application of these procedures. As the administrative judge correctly concluded,
4 The version of 5 C.F.R. § 890.502 (b) in effect when the appellant’s former employing
agency recertified the debt similarly does not differ from the 2017 version in any
relevant respect. 5 C.F.R. § 890.502 (b)(1) -(3) (2000); IAF, Tab 5 at 10, 16 -17.
7
the appellant’s former employing agency properly certified and recertified that it
had exhausted ord inary means of debt recovery before seeking offset, meeting its
obligations under the regulation. IAF, Tab 5 at 16-17; ID at 3 -4.
¶11 For the foregoing reasons, we deny the petition for review and affirm the
initial decision, affirming OPM’s denial of the a ppellant’s application for a
deferred CSRS annuity.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. 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.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final de cisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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
9
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your repr esentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requ irement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdic tion expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Co urt of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GREENLEE_AMY_M_DC_0831_17_0119_I_1_FINAL_ORDER_2011284.pdf | 2023-03-14 | null | DC-0831 | NP |
3,396 | https://www.mspb.gov/decisions/nonprecedential/GHOSH_S_BEN_AT_3443_16_0646_I_1_FINAL_ORDER_2011364.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
S. BEN GHOSH,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
AT-3443 -16-0646 -I-1
DATE: March 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
S. Ben Ghosh , Marietta, Georgia, pro se.
Alicia Lewis , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 his appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the i nitial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge ’s rulings during either the course of
the appeal or the initial decision were not co nsistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner ’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant, a GS -12 Environmental Engineer, filed an appeal challenging
his nonselection for promotion to a GS -13 Environmental Engineer position .
Initial Appeal File (IAF), Tab 1 at 6-10. In his appeal, the appellant, who is of
Indian -American descent, alleged that the agency did not select him for the
promotion on the basis of his race, opting instead t o promote a white male to the
position . Id. at 7 -8. He also alleged additional examples of discriminatory
promotion, accusing agency management of engaging in a “pattern of practice” of
discriminatory promotions . Id. at 7.
¶3 By order dated July 11, 2016 , the administrative judge informed the
appellant that the Board may not have jurisdiction over the appeal of his
nonselection. IAF, Tab 2. The administrative judge explained that the Board
3
generally lacks authority to review nonselection claims and identified the
exceptions in which the Board does have jurisdiction over nonselection s, such as
an individu al right of a ction (IRA) appeal claiming reprisal for whistleblowing or
protected activity , claims under the Veterans Employment Opportunities A ct of
1998 (VEOA) , or claims under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) . Id. at 2 -5; see Becker v.
Department of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 5 (2007) . The
administrative judge also apprised the appellant of his burden in proving Board
jurisdiction, explained what was required to establish Board jurisdiction, and
ordered the appell ant to file evidence and argument demonstrating that his claim
was within the Board ’s jurisdiction. IAF, Tab 2 at 2 -5.
¶4 In reply , the appellant argued that the Board had jurisdi ction over his claim
as a “mixed -case ” appeal or an appeal of a prohibited personnel practice. IAF,
Tab 3 at 2 -4. Subsequently, he filed a motion for default judgment , arguing that
the agenc y had not entered an appearance or responded to the acknowledgment
order or to his discovery requests . IAF, Tab 4. The agency filed a response in
opposition to the default motion , arguing that the Board lacked the authority to
grant a default judgment against the agency . IAF, Tab 6 at 4-7. The agency also
argued t hat the appellant’s motion should be de nied because he failed to prove
Board jurisdiction over the appeal of his nonselection, and so the appeal should
be dismissed for lack of jurisdiction. Id. at 6-7.
¶5 Without holding the appellant ’s requested hearing, the administrative judge
issued an ini tial decision dismissing the ap peal for a lack of jurisdiction . IAF,
Tab 7, Initial Decision (ID) at 1-3. The appellant timely filed a petition for
review. Petition for Review (PFR ) File, Tab 3 at 5 -14. The agency did not
submit a response.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Broadly stated, the appellant ’s arguments on review fall into one of three
categories: (1) arguments that the Board has jurisdiction ov er his appeal;
(2) disagreement s with the administrative judge ’s decision not to grant his
requested default judgment sanction ; and (3) arguments either raised for the first
time on review or that are unrelated to the jurisdictional question at issue in the
appeal .3 Id.
¶7 Regarding the appellant ’s argument that the Board has jurisdiction over his
nonselection, as the administrative judge correctly noted, the Board generally
lacks jurisdiction over nonselection appeals, with the exception of IRA appeals
claiming reprisal for whistleblowing or protected activ ity, VEO A appeals, and
USERRA appeals. ID at 2; Becker , 107 M.S.P.R. 327 , ¶ 5 . The appellant did not
allege below that the agenc y retaliated against him for disclosures o r activities
protected under the Whistleblower Protection Act or the W histleblower Protection
Enhancement Act, nor did he ever allege that he was a preference -eligible veteran
or that he was asserting claims under VEOA or USERRA. IAF, Tabs 1, 3 -4.
Accordingly , we agree with the administrative judge ’s determination that the
appellant has not made a nonfrivolous allegation of jurisdiction over his
nonselection appeal under any of the listed e xceptions to the general rule, and
find no reason to disturb those findings. I D at 2.
¶8 Although the appellant argues that it is within the Board’s purview to
review the agency ’s decision as a possible prohibited personn el practice, PFR
File, Tab 3 at 10, ¶ 21, absent an otherwise appealable issue, the Board does not
have jurisdiction to consider the appellant ’s claim that the agency ’s decision not
to promote him may have been a prohibited personnel practice , Wren v.
3 In addition to the cases directly discussed below, we have reviewed the numerous
other cases cited by the appellant on review in support of his argument that the Board
has jurisdiction over his appeal, and we have determined that they do not warrant a
different outcome. PFR File, Tab 3 at 5 -14.
5
Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (holding that 5 U.S.C. § 2302 (b)
is not an independent source of Board jurisdiction) , aff’d, 681 F.2d 867 , 871 -73
(D.C. Cir. 1982); see also Davis v. Department of Defense , 105 M.S.P.R. 604 ,
¶¶ 15-16 (2007) (explaining that the merit system principles are not themselves a
source of Board jurisdiction ; that absent an otherwise appealable action , a
prohibited personnel practices claim cannot be consi dered by the Board ; and that
a nonselection is not an otherwise appealable action) . Consequently, we find that
the Board also lacks jurisdiction over the appellant ’s prohibited personnel
practice claim.
¶9 Conce rning the appellant ’s argument that the Board has jurisdiction over his
appeal as a mixed -case appeal, because he has not alleged that he was subjected
to an action that is appealable to the B oard, his appeal is not a mixed -case appeal.
See Lethridge v. U.S. Postal Service , 99 M.S.P.R. 675 , ¶ 9 (2005) (explaining that
a mixed -case appeal involves an action that is appealable to the Board and an
allega tion that the appealable action is based on prohibited discrimination) (citing
5 C.F.R. § 1201.151 (a)(1); 29 C.F.R. § 1614.302 (a)(2)). Thus, we find no basis
for finding jurisdiction over the appellant ’s appeal as a mixed -case.
¶10 Regarding the administrative judge ’s decision not to grant the requested
default judgment sanction, the appellant generally argues that the au thority cited
by the agency is old or inapplicable or has been overruled, and he offers
alternative precedent to support his claim that the Board has authority to grant a
default judgment . PFR File, Tab 3 at 11 -12, ¶¶ 23 -27. Despite the appellant ’s
argum ent to the contrary, the Board is without authority to issue a default
judgment against an agency. Burnett v. Department of Housing and Urban
Development , 114 M.S.P.R. 1 , ¶ 3 n.1 (2010 ); Hayes v. Department of the
Treasury , 74 M.S.P.R. 613 , 615 (1997) .4 The cases cited by th e appellant are
4 Although the appellant n otes that Lavelle v. Department of the Navy , 37 M.S.P.R. 86 ,
90 (1988), cited by the agency to support this proposition, was overruled b y Mattern v.
6
either inapplicable —as in the cases of Robinson v. Department of the Army ,
EEOC Case Nos. 531 -2012-00210X and 531-2012 -00211X (October 17, 2012)
(field office order) , which was an order by an Equal Employment Opportunity
Commission ’s administrative judge grant ing a default judgment , and In re
Gleason , 492 F. App ’x 86 (11th Cir. 2012), which involved the imposition of
sanctions by a bankruptcy court —or do not support the appellant ’s stated
position , as in the case of Williams v. U.S. Postal Service , 116 M.S.P.R. 377 ,
¶¶ 7, 9 (2011), which involved an appellant ’s repeated failure to respond to th e
Board ’s orders address ing jurisdiction and timeliness . PFR File, Tab 3 at 12,
¶¶ 25-27.
¶11 Further, a bsent an abuse of discretion, the Board will not ordinarily reverse
an administrative judge ’s dete rmination regarding sanctions. See Leseman v.
Departme nt of the Army , 122 M.S.P.R. 139 , ¶ 6 (2015) (citing Davis v.
Department of Commerce , 120 M.S.P.R. 34 , ¶ 1 8 (2013) ); Wagner v. Department
of Homeland Security , 105 M.S.P.R. 67 , ¶ 9 (2007). The appellant has not
demonstrated that the administrative judge abused his discretion in denying the
default judgment request , and we find no reason to disturb the administrative
judge ’s findings in this regard. See Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the adminis trative 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).
¶12 Finally, for the first time on review , the a ppellant has alleged that the
agency retali ated against him for filing an e qual employment opportunity (EEO)
claim . PFR File, Tab 3 at 8, ¶ 14. The Board generally will not consider an
Department of the Treasury , 88 M.S.P.R. 65 (2001) , aff’d, 291 F.3d 1366 (Fed. Cir.
2002) , Lavelle was overruled on other grounds. See Mattern , 88 M.S.P.R. 65 , ¶¶ 9 -16.
Indeed , subsequent post -Lavelle Board decisions have continued to state this
proposition. See Burnett , 114 M.S.P.R. 1 , ¶ 3 n.1.
7
argument raised for the first time on review absent a showing that it is based on
new and material evidence not previously available despite the party ’s due
diligence. Hodges v. Office of P ersonnel Management , 101 M.S.P.R. 212 , ¶¶ 7-9
(2006); Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) ;
5 C.F.R. § 1201.115 (d). The appellant has provided n o explanation for why he
could not have raised this argument below , and we need not consider it on review .
Additionally , it appears that the subject matter of the appellant ’s EEO complaint
is the same nonselection claim that he alleges constitute s the age ncy’s retaliatory
act, and as such, it could not also be the action that motivated the agency’s
purported retaliation . Further , although the Board may ordinarily have
jurisdiction to consider a nonselection claim raised in the context of an IRA
appeal, see Ormond v. Department of Justice , 118 M.S.P.R. 337 , ¶ 13 (2012), the
appellant ’s vague statement raised for the first time on rev iew, unaccompanied by
any documents, and unaccompanied by any claim that he has exhausted his
remedies with the Office of Special Counsel regarding any potential retaliation
claim, would fail to present any reviewable claim even if we were to consider this
argument at this time. If the appellant desires to file an IRA appeal, he may do so
with the Board’s regional office in accordan ce with the Board ’s procedures. See
5 C.F.R. §§ 1209 .5-1209.6.
¶13 We therefore deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the na ture of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which opt ion is most appropriate in any matter.
8
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate on e to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U. S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cour t of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in 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 Meri t Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this deci sion. 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,
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 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 practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may 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.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, 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
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 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 Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
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 | GHOSH_S_BEN_AT_3443_16_0646_I_1_FINAL_ORDER_2011364.pdf | 2023-03-14 | null | AT-3443 | NP |
3,397 | https://www.mspb.gov/decisions/nonprecedential/HALL_MICHAEL_B_SF_0752_16_0492_I_1_FINAL_ORDER_2011393.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL B. HALL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -16-0492 -I-1
DATE: March 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sam L. Maze , Highland, California, for the appellant.
La’Chelle M. Woodert , Esquire, Loma Linda, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant ha s filed a petition for review of the initial decision, which
sustained the appellant’s removal. On petition for review, the appellant argues
that the administrative judge erred in sustaining the charge and in finding that he
failed to prove his age and ra ce discrimination defenses, as well as his claim that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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).
the agency’s action was taken in retaliation for his Equal Employment
Opportunity activity. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision con tains 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 o f 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 pe titioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final de cision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights de scribed below do not represent a
2 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the a ppellant proved that discrimination or
retaliation was a “but -for” cause of the agency’s decisions. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33.
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.
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follo w all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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. 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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, 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.
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals 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.
Contact information for the courts of appeals can be 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_MICHAEL_B_SF_0752_16_0492_I_1_FINAL_ORDER_2011393.pdf | 2023-03-14 | null | SF-0752 | NP |
3,398 | https://www.mspb.gov/decisions/nonprecedential/ALARID_DOUGLAS_A_SF_0752_14_0256_B_2_FINAL_ORDER_2010997.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOUGLAS A. ALARID,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -14-0256 -B-2
DATE: March 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul E. Carreras , Santa Rosa, California, for the appellant.
Bernard Lee Gotmer , Fort Hunter Liggett, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision
that 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 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
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 Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclu de that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision , which is now the Board’s final decision . 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant served as a Police Officer with the agency’s Camp Parks
Reserve Forces T raining Area Police Department. Alarid v. Department of the
Army , MSPB Docket No. SF -0752 -14-0256 -I-1, Initial Appeal File (IAF), Tab 5
at 18. On October 4, 2013, the agency proposed the appellant’s removal based on
the following charges: (1) conspiracy to purchase and distribute an unauth orized
Federal police badge; and (2) the manufacture and distribution of an unauthorized
Federal police identification card. Id. at 38 -43. The appellant provided a written
reply to the proposed removal, and on December 13, 2013, the agency issued a
decision sustaining the charges a nd removing the appellant , effective on the same
date. Id. at 18, 20 -29, 31 -36.
¶3 The appellant timely filed an initial appeal with the Board , and following a
hearing, the administrative judge issued an initial decision sustaining the
agency’s charges and f inding that the appellant failed to prove that his removal
was the result of reprisal for equal employ ment opportunity (EEO) activity, that
the appellant’s misconduct had an adverse effect on the efficiency of the service,
3
and that the penalty of removal w as reasonable. IAF, Tab 41, Initial Decision.
The appellant petitioned the Board for review of t he ini tial decision, and in an
August 21, 2015 Opinion a nd Order, the Board held that the administrative judge
did not notify the appellant of the relevant burdens to prove his affirmative
defenses, did not consider his affirmative defense of reprisal for parti cipation i n
union activity under 5 U.S.C. § 2302 (b)(9)(B), and did not address the appellant’s
other claims of reprisal for whistleblowing and due process violations . Alar id v.
Department of the Army , 122 M.S.P.R. 600 , ¶¶ 7-17 (2015 ). The Board vacated
the initial decision and remanded the appeal for the administrative judge to
further adjudicate the appellant’s affirmative defenses. Id., ¶¶ 1, 18 .
¶4 On remand, the administrative judge notified the appellant of the relevant
burdens for the affirmative defenses, considered additional evidence and
argument from the parties regarding the appellant’s affirmative defenses , and
issued a remand initial decision finding that the appellant had not proven his
affirmative defenses of d ue process violations and reprisal for participation in
union activity and whistleblowing . Alarid v. Department of the Army , MSPB
Docket No. SF-0752 -14-0256 -B-2, Refiled Remand File (RRF) , Tab 3, Tab 5 ,
Remand Initial Decision (RID) at 13 -25. The administrative judge also adopted
his findings from the initial decision that the agency proved its charges, there was
a nexus between the appellant’s misconduct and the efficiency of the service, and
the penalty of removal was reasonable. RID at 2 -12, 25-26.
¶5 The appellant has filed a petition for review of the remand initial decision
in which he argues that the deciding official perjure d himself during th e hearings
held in this matter; the agency did not prove by clear and convincing evi dence
that it would have taken the removal action in the absence of his protecte d union
activity; the agency did not prove its charges, that a nexus existed between the
misconduct and the efficiency of the service, and that the penalty of removal was
reaso nable ; and the administrative judge slept through portions of the second
hearing held in this case . Alarid v. Department of the Army , MSPB Docket
4
No. SF-0752 -14-0256 -B-2, Remand Petition for Review ( RPFR) File, Tab 3. The
agency has filed a response opposing the petition for review, to which the
appellant has filed a reply. RPFR File, Tabs 5-6. As set forth below, the
administrative judge properly found that the agency proved its charges by
preponde rant evidence, and the appellant has not show n that the administrative
judge erred in finding the deciding official’s testimony credible or that the
administrative judge was asleep during the second hearing . We also find that the
appellant has not shown e rror in the administrative judge’s rulings that the agency
established by clear and convincing evidence that it would have removed the
appellant absent his protected union activity , that the appellant did not show that
his protected disclosures were a cont ributing factor in the removal , and that the
agency proved a nexus between the misconduct and the efficiency of the service
and that the penalty of removal was reasonable.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the a gency proved its charges.
¶6 On review, the appellant does not challenge the administrative judge’s
finding that the agency proved its charges other than to generally dispute the
administrative judge’s finding that the agency’s evidence was strong and clear in
support of its removal action. RPFR File, Tab 3 at 15 ; RID at 2 -12. The
appellant also alleges that the deciding official committed perjury during the
hearings held in this matter, which “calls [his] credibility into serious question,
including his decision to remove Appellant.” RPFR File, Tab 3 at 15. We
address these arguments below.
¶7 The administrative judge found that the agency proved its charge of the
manufacture and distribution of an unauthorized Federal police identification card
by preponderant evidence . RID at 4 -10. Specifically, the administrative judge
found that the appellant admitted to making at least two Federal police
identification cards on the agency’s identification card machine and providing
5
them to a former employe e, the first of which was made pursuant to a settlement
agreement, but that a subsequent identification card was not authorized by the
agency because it contained language not authorized by the settlement agreement
or the chief of police, and the appellant ’s explanation as to why the language was
authorized was not credible based on the testimony and documentary evidence
presented . Id. The administrative judge also found that the appella nt’s actions
violated 18 U.S.C. § 701, which prohibits the manufacture, sale, or possession of
any “badge, identification card, or other insignia , of the design prescribed by the
head of any department or agency of the United States for use by any officer or
employe e thereof, or any colorable imitation thereof . . . except as authorized
under regulations made pursuant to law [.]” RID at 9 -10.
¶8 The administrative judge then found that the agency proved its charge of
conspiracy to purchase and distribute an unauthoriz ed Federal police badge . RID
at 10 -12. Specifically, the administrative judge found that the appellant did not
deny working with the former employee to order and pay for a police badge for
the former employee , which involved the appellant contacting a vendor that
produces police badges and discussing the badge design with the vendor. Id. The
administrative judge concluded that the appellant’s claim that the badge was
authorized was not credible because the settlement agreement did not au thorize
such a badge, each of the officers who possessed such a badge testified that , to
obtain one, they had to get a letter of authorization from the former Camp Parks
chief of police , and the vendor’s sales representative testified that she thought the
badge was for current police officer s and would not have sold it to the appellant
and the former employee if she had kn own he was no longer employed. RID
at 11-12. Thus, the administrative judge found that the appellant acted in concert
with the former e mployee to obtain an unauthorized police badge, which violated
18 U.S.C. § 371, which prohibits two or more persons from conspiring to commit
an offense against the United States and effecting the object of the conspiracy ,
and concluded that the agency had proved its second ch arge by preponderant
6
evidence. RID at 12. The appellant does not dispute these findings, and w e
discern no reason to disturb the administrative judge’s findings, as the recor d
reflects that the administrative judge considered the evidence as a whole, drew
appropriate inferences from the evidence, and made reasoned conclusions on the
issue of credibility. RID at 2 -12; see Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 6 (2016); Broughton v. Department of Health and Human
Services , 33 M.S.P.R. 357 , 359 (1987).
The appellant has not shown that the administrative judge erred in finding the
deciding official’s testimony credible.
¶9 We next address the appellant’s claim that the administrative judge was
asleep during portions of the second hearing held in this matter , as our finding as
to this issue bears upon whether the administrative judge properly assessed the
evidence as to whether the deciding offici al committ ed perjury . On review, the
appellant submits an affidavit, and affidavits from his girlfriend and one of his
witnesses, stating that they observed the administrative judge sleeping during the
second hearing. RPFR File, Tab 3 at 25-31. The appellant did not raise the
administrative judge’s alleged inattentiveness at any point during the proceedings
below or in his written closing argument . His failure to object below precludes
him from pursuing this argument on review. See Watson v. Department of the
Treasury , 49 M.S.P.R. 237 , 242 (1991) (finding that the appellant’ s
representative’s failure to object to the length of the hearing sessio ns and
presentation of oral closing arguments precluded him from pursuing the
arguments on review) .
¶10 Moreover, the record does not support the appellant’s claim that the
administrative judge was asleep during testimony . The appellant contends that
the ad ministrative judge was asleep during the testimony of the proposing
official, particularly a portion of his testi mony in which he testified about “taking
a telephone call from” the former Camp Parks chief of police to the deciding
official, which the admin istrative judge later stated that he did not hear. RPFR
7
File, Tab 3 at 21 -27. There is no such testimony from the prop osing official in
the record. The proposing official did testify that he “believe[d]” the former
Camp Parks chief of police had briefed the deciding official, which led to an
internal investigation of the appellant’s misconduct. Alarid v. Department of the
Army , MSPB Docket No. SF -0752 -14-0256 -B-1, Remand File (RF), Hearing
Transcript (HT) at 113 (testimony of the proposing official). But, t he
administrative judge asked the question that elicited this testimony from the
proposing official and asked a follow -up question immediately after the proposing
official responded. HT at 113 -14 (testimony of the proposing official). Thus,
contrar y to the appellant’s assertions, the administrative judge was not asleep
during this testimony. Likewise, t he appellant’s claim that the administrative
judge was asleep during the testimony of two other witnesses is not sufficiently
specific to warrant fu rther discussion. RPFR File, Tab 3 at 21-24.
¶11 We also have reviewed the evidence that the appellant claims demonstrates
that the deciding official perjured himself during the course of the two hearings in
this case and find no basis on which to disturb the administrative judge’s
findings .3 The appellant contends that the deciding official’s denial of interacting
with the former Camp Parks chief of police calls into question the credibility of
the deciding official’s denial of any anti -union bias in his decision to sustain the
removal . RPFR File, Tab 3 at 9-10. The administrative judge analyzed whether
the appellant’s participation in union activity was a contributing factor in the
removal and whether there was evidence that there was motive to retaliat e against
the a ppellant for his union activity. To that end, the administrative judge made
findings as to the plausibility of witness testimony that the deciding official had
3 Although the appellant and the administrative judge characterize th e allegedly
perjured testimony as depriving the appellant of due process, the appellant offered the
evidence of perjury to impeach the credibility of the deciding official. See Deleson v.
Department of the Interior , 88 M.S.P.R. 121 , ¶ 6 (2001) (finding that the appellant’s
evidence that agency witnesses had perjured themselves was submitted to impeach the
credibility of the witnesses) .
8
communicated with the former Camp Parks chief of police . The administrative
judge concluded that, although the deciding official was aware of the appellant’s
union activity because the appellant had informed him of such activity , there was
no evidence that the deciding official was inf luenced by the former chief of
police . RID at 17 -21. The Board defer s to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing 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
impro per considerations, or unsupported by the record, Redschlag v. Department
of the Army , 89 M.S.P.R. 589 , ¶ 13 (2001), it may not ov erturn 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). Here, the administrative
judge did not discuss all of the evidence regarding whether the deciding official
and former Camp Pa rks chief of police communicate d. Howeve r, his failure to
mention all of the evidence of record does not mean that he did not consider it in
reaching his decision. Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) ( Table).
¶12 Moreover, o ur review of the record does not support a finding that the
administrative judge erred in finding that the deciding official’s testimony was
credible . The deciding official testified consistently during the proceedings that
he had not talked to or met the former Camp Parks chief of police. IAF, Hearing
Compact Disc (HCD) (testimony of the deciding official); HT at 116, 125 -26
(testimony of the deciding official). As set forth above, the proposing official
testified that he “believe[d]” the former chief of police had briefed the deciding
official , but this testimony did not indicate that the proposing official had
first-hand kno wledge of the briefing . HT at 113 (testimony of the proposing
official). The appellant has submitted additional evidence and argument
9
regarding the deciding official’s alleged perjury in his reply to the agency’s
opposition to the petition for review, but we do not consider them because they
raise new allegations of error that are outside the scope of the petition for review
and the opposition . See 5 C.F.R. § 1201.114 (a)(4) (providing that a reply to a
response to a petition review is limited to the factual and legal issues raised by
another party in the response and may not raise new allegations of error).
However, a complete copy of the first exhibit attached to the appel lant’s reply is
contained in the record. IAF, Tab 5 at 54-64. This document, as well as others in
the record, reflects that the former Camp Parks deputy chief of police reported
information regarding the investigation of the appellant via a military poli ce
report in August 2012. Id. at 51-64. The report is addressed to the commander
from the deciding official, and the former chief of police ’s name appears in the
report as the “reporting official ,” but it does not reflect that the decid ing official
spoke with the former chief of police at that time. Id. at 54, 58. Additionally, the
former chief of police was placed on administrative leave on October 3, 2012,
RRF, Tab 3 at 23 -24, and t he deciding official became the director of emergency
services of Fort Hunter Liggett , which oversees Camp Parks, on October 26,
2012, IAF, HCD (testimony of the deciding official) . Given the record evidence,
any witness testimony that the deciding official, in his capacity as director of
emergency services, spoke periodically with the former Camp Parks chief of
police, is insufficient to show that the administrative judge erred in finding the
deciding official credible .
The administrative judge properly found that the appellant did not prove his
affirmative defenses of reprisal for participation in union activity and
whistleblowing .
¶13 On review, the appellant challenges the administrative judge’s finding that
he did not p rove his affirmative defenses of reprisal for participation in union
activity and whistleblowing . RPFR File, Tab 3 at 10 -17. In an adverse action
appeal in which the appellant raises a prohibited personnel practice affirmative
10
defense that could independ ently form the basis of an individual right of action
appeal , once the agency proves its adverse action case by preponderant evidence,
the appellant must show by preponderant evidence that he made a disclosure
protected under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity protected
under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) ; and that the protected
disclosure or activity was a contributing factor in the agency’s personnel action .
Alarid , 122 M.S.P.R. 600, ¶¶ 12-13; Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537 , ¶ 19 (2013). If the appellant makes both of these showings by
preponderant evidence, the burden of persuasion shifts to the agency to prove by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the appellant’s protected activity. 5 U.S.C. § 1221 (e)(2);
Alarid , 122 M.S.P .R. 600 , ¶ 14.
¶14 On review, neither party disputes the administ rative judge’s finding that the
appellant proved by preponderant evidence that he participated in union ac tivity
protected under 5 U.S.C. § 2302 (b)(9)(B) , and that this activity was a
contributing factor in the decision to remove him because the deciding official
became aware of the appellant’s union activity when the appellant raised it in his
reply to the proposed removal and the deciding official sustai ned the removal just
over 1 month later . RID at 17 -20. We discern no reason to disturb the
administrative judge’s findings .
¶15 The appellant disputes that the agency proved by clear and convincing
evidence that it would have removed him absent his protected un ion activity. In
determining whether an agency has shown by clear and convincing evidence that
it would have taken the same personnel action absent the protected activity, the
Board will consider all of the relevant factors , including the following (“ Carr
factors”) : (1) The strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes sim ilar actions against employees who did not engage in such protected
11
activity, but who are otherwise similarly situated. See Soto v. Department of
Veterans Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).4 In assessing whether the
agency has met its burden by clear and convincing evidence, the Board must
consider all the pertinent evidence in the record, and it must not exclude or ignore
countervailing evidence by only looking at the evidence that supports the
agency’s position. See Herman v. Depart ment of Justice , 119 M.S.P.R. 642 , ¶ 15
(2013) (citing Whitmore v. Department of Labor , 680 F.3d 1353 , 1367 -70 (Fed.
Cir. 2012)).
¶16 The appellant challenges the administrative judge’s finding that the agency
had clear and strong evidence in support of its removal action on t he basis that
the deciding official committed perjury, which compromises his decision to
remove the appellant. RPFR File, Tab 3 at 15. However, as we have discussed
above, the record does not support a conclusion that the deciding official was not
credible. Moreover, we find that the administrative judge properly assessed the
strength of the agency’s evidence in the removal action, as he considered the
appellant’s sworn statement admitting to making at least two polic e identification
cards for an employee who was no longer employed by the agency , the
consistency of witness testimony and documentary evidence regarding the
procedures for producing such identification cards, and the testimony of at least
one disinterested witness and documentary evidence showing that the appellant
assisted the former employee in purchasing a n unauthorized police badge. RID
at 4-12, 21.
4 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.
12
¶17 The appellant also challenges the administrative judge’s finding that, while
there was evidence that t he former Camp Parks chief of police and deputy chief of
police had a retaliatory motive to remove the appellant because of his union
activity, such a motive could not be imputed to the proposing and deciding
officials. RPFR Fi le, Tab 3 at 15 -17; RID at 2 1. The appellant contends that
witness testimony established that the proposing and deciding official s held
anti-union bias, that the deciding official was influenced by his alleged
conversations with the former Camp Parks chief of police, and that the de ciding
official knew or should have known of the union activities at Camp Parks because
the post was under his authority. RPFR File, Tab 3 at 15 -17.
¶18 In applying the second Carr factor, the Board will consider any motive to
retaliate on the part of the a gency official who ordered the action, as well as any
motive to retaliate on the part of other agency officials who influenced the
decision. Herman , 119 M.S.P.R. 642 , ¶ 16; see Robinson v. Department of
Veterans Affairs , 923 F.3d 1004 , 1019 -20 (Fed. Cir. 2019) (discussing a
professional motive to retaliate when assessing the second Carr factor) . We
agree wi th the administrative judge tha t there is little evidence that the deciding
official was influenced by the former Camp Parks chief of police , who was placed
on administrative leave pending his removal over 1 year before the issuance of
the decision in this matter . RID at 21. Given the intervening time period and
investigation of the appellant prior to the issuance of the proposal and decision to
remove the appellant, as well as the departure of the former Camp Parks deputy
chief of police 6 months before the issuance of the proposal and decision, the
administrative judge properly concluded that the former Camp Parks officials did
not exert influence over the proposing and deciding officials in this matter. Id.;
IAF, Tab 5 at 20 -29, 38 -43; HT at 86 -89 (testimony of the proposing official).
Moreover, there is little evidence that the proposing and deciding officials were
aware of the particulars of the appell ant’s union activity or that they were
implicated in his activity. The deciding and proposing officials ’ testimony
13
reflected that, due to the organizational structure of the police units , they had
little involvement with the Camp Parks collective bargaini ng uni t until the
proposing official began his duties as acting chief of police of Camp Parks , which
occurred after the appellant began administrative leave . HT at 86 -93 (testimony
of the proposing official), 115-18, 130 -35 (testimony of the deciding official).
Thus, we find that the administrative judge properly found that the proposing and
deciding officials had little motive to retaliate. See, e.g., Rumsey v. Department
of Justice , 120 M.S.P.R. 259 , ¶ 45 (2013) (finding little evidence that the
involved official h arbored retaliatory motive when the disclosures did not reflect
on him and concerned m atters that largely predated his arrival at the agency).
¶19 Next , in applying the third Carr factor, when the agency fails to introduce
relevant comparator evidence, the third Carr factor is effectively removed from
consideration, although it cannot weigh in favor of the agency. See Soto ,
2022 MSPB 6 , ¶ 18; see also Rickel v. Department of the Navy , 31 F.4th 1358 ,
1365 -66 (Fed. Cir. 2022) (holding that the absence of any evidence concerning
Carr factor three may well cause the agency to fa il its case overall, but it will not
necessarily do so) . The appellant contends that other employees who were union
stewards or filed grievances were terminated. RPFR File, Tab 3 a t 17. The
administrative judge acknowledged this fact but noted that the witness who
described the terminati ons admitted that only one of the terminations “could have
been” retaliation, and that there is no evidence that other employees committed
similar misconduct to that of the appellant.5 RID at 21 . Our review of the record
reflects that the agency did not present any evidence regarding whether it took
similar actions against employees who we re similarly situated to the appellant but
did not participate in union activity . Although the appellant’s witnesses testified
about the terminations of seven other agency employees, the re was in sufficient
5 In addition to opining that one employee “could have been” terminated for his union
activity, the witness also testified that another employee was unjustly terminated
because he was a union steward. HT at 13 -17 (testimony of J.H.).
14
information to conclude that any of the individuals were similarly situated to the
appellant .6 Considering the agency’s advantage in accessing this type of
evidence, we find that this factor cannot weigh in the agency’s favor . We
nevertheles s are left with the firm belief that the agency would have taken the
same action absent the appellant’s protected activity based on the strength of the
agency’s evidence in support of his removal and little evidence of the p roposing
and deciding officials’ motive to retaliate .
¶20 The appellant also argues that the administrative judge’s findings
concerning his affirmative defense of whistleblower reprisal is erroneous for the
reasons he set forth regarding his affirmative defense of reprisal for participation
in union activity because the administrative judge applied the same analysis to his
allegations of reprisal for whistleblowing . RPFR File, Tab 3 at 17 . As set forth
above, when an appellant raises whistleblower reprisal as an affirmative defense
to an adverse action, he must prove by preponderant evidence that he made a
protected disclosure that was a contributing factor in the personnel action taken
against him. Shibuya , 119 M.S.P.R. 537 , ¶¶ 19-20; see 5 U.S.C. § 1221 (e)(1) . To
establish that he made a protected disclosure, the appellant must show by
preponderant evidence that he disclosed informa tion that he reasonably believed
evidenced a violation of a law, rule, or regulation, gross mismanagement, a gross
6 The appellant’s witnesses referred to most of the seven employees as police
“officer[s],” but the testimony identified two of the employees as police sergeants,
rather than police officers. HT at 13 -17 (testimony of J.H.). Of the remaining five
employees, two were specifically identified as police officers, and both were terminated
for misconduct that was not similar to that of the appellant. Id. at 13 -17 (testimony of
J.H.), 46 -49 (testimony of M.F.), 69 -70 (testimony of E.B.).
The evidence that other employees who participated in union activity were terminated
also could show a motive on the part of the proposing or deciding official to ret aliate
against those who participated in union activity; however, the record does not contain
the role of the proposing or deciding official in the terminations or other information
that could support a finding of bias against participants in union activit y. See
Whitmore , 680 F.3d at 1369 (determining that it was an abuse of discretion to exclude
the testimony of a whistleblower removed from his position to the extent it could show
bias against whistleblowers).
15
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Shibuya , 119 M.S.P.R. 537 , ¶ 20; see 5 U.S.C.
§ 2308 (b)(8)(A) . The administrative judge found that the appellant did not
identify any protected disclosures; rather, th e appellant alleged that he was
involved in filing grievances, unfair labor practice (ULP) complaints, EEO
complaints, and one complaint to the Office of Inspector General (OIG) . RID
at 23-25. The administrative judge found that the complaints that the appellant
entered into the record, consisting of two ULP complaints and one OIG
complaint, could be con sidered protected disclosures. RID at 23-24; RF, Tab 8
at 16-17, 19, 34 -42.7
¶21 However, the administrative judge concluded that the appellant did not
show that these disclosures were a contributing factor in his removal because the
proposing and deciding official s were not aware of the disclosures. RID at 24;
HT at 89 -90 (testimony of the proposing official), 119 (testimony of the deciding
official). A protected disclosure is a contributing factor if it affects an agenc y’s
decision to take a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480 , ¶ 14 (2012). An appellant may demon strate that a disclosure
was a contributing factor in a personnel action through circumstantial evidence,
such as evidence that the official taking the personnel action knew of the
disclosure, and that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
7 The appellant also provided one 2008 ULP that concerned reprisal for serving as a
witness regarding an unfair labor practice charge, but this does not constitute a
protected disclosure made by the appellant; rather, it is applicable to his affirmative
defense of reprisal for participation in unio n activity. RF, Tab 8 at 21 -22. We also
note that the appellant furnished a 2008 letter he submitted to the commanding officer
of Camp Parks on behalf of the collective bargaining unit regarding working conditions
under the former Camp Parks deputy chief of police, then the chief of police, as well as
a 2010 ULP he submitted on behalf of the collective bargaining unit; however, even if
these documents could be construed as protected disclosures, the record does not reflect
that the proposing or deciding o fficial in this case were aware of these documents. Id.
at 23, 29 -31.
16
factor in the personnel action . Id.; see 5 U.S.C. § 1221 (e)(1). An appellant may
also satisfy the knowledge prong of this knowledge/timing test by proving that
the official taking the action had constructive knowledge of the protected
disclosure, even if the official lacked actual knowledge. Nasuti v. Department of
State , 120 M.S.P.R. 588 , ¶ 7 (2014). An appellant may establish constructive
knowledge by showing that an individual with actual knowledge of the disclosure
influenced the official accused of taking the retaliatory action. Id. The Board has
held that i f an administrative judge determines that the appellant has failed to
satisfy the knowledge/timing test, he must consider other evi dence, such as
evidence pertaining to the strength or weakness of the agency’s reasons for taking
the personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. Dorney , 117 M.S.P.R. 480 , ¶ 15. Any
weight given to a whistleblowing disclosure, eit her alone or in combination with
other factors, can satisfy the contr ibuting factor standard . Id.
¶22 On review, the appellant has not disputed the administrative judge’s
findings that the proposing and deciding officials were not aware of the protected
disclosure s. The appellant generally alleged on review that the former Camp
Parks chief of police and deputy chief of police were aware of his union activity,
but as set forth above, the administrative judge did not err in finding that the
proposing and deciding official s were not influenced by the former agency
officials in this regard, and the appellant has not otherwise alleged on review that
the deciding official had constructive knowledge of the disclosures in the two
ULP complaints and one OIG complaint at issue. RPFR File, Tab 3 a t 15-17.
Thus, we find no reason to disturb the administrative judge’s finding that, given
the proposing and deciding officials’ uncontroverted testimony that they were not
aware of the appellant’s ULP and OIG complaints, the appellant’s disclosures
were not a contributing factor in the removal action . Accordingly , we affirm the
17
administrative judge’s fin dings that the appellant did not prove his affirmative
defenses.
The administrative judge properly found that the agency proved a nexus between
the misconduct and the efficiency of the service and that the penalty was
reasonable.
¶23 The appellant argues that the agency did not prove a nexus between the
appellant’s off -duty misconduct and the efficiency of the service. RPFR File, Tab
3 at 17 -21. An agency can show a nexus between off -duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct
adversely affects the appellant’s or coworkers’ job performance or the agency’s
trust and confidence in the appellant’s job performance; or (3) prepon derant
evidence that the misconduct interfered with or adversely affected the agency’s
mission. Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987). Here, the
administrative judge found that the adverse effect on the efficiency of the service
was readily apparent, as the appellant was charged with the enforcement of
Federal criminal laws such as the ones that he had violated. RID at 2 5. The
record reflects that the appellant was a police officer , charged with upholding the
law and protecting Government property , yet he aided a former employee in
obtaining unauthorized police identification and badges , which constituted
violations of Federal law and a potential safety risk . IAF, Tab 5 at 26-27. The
deciding official observed that the appellant’s poor judgment caused him to lose
confidence that the appellant could be trusted to perform his duties in accordance
with the agency’s rules, regulations, and standar ds of conduct. Id. at 27. Thus,
we find that the agency established that the appellant’s misconduct adversely
affected the agency’s trust and confidence in his performance and proved by
preponderant evidence that his misconduct adversely affected the efficiency of
the service.
18
¶24 Finally, w e are als o unpersuaded by the appellant’s arguments that the
agency did not prove that the penalty of removal was reasonable. When , as here,
the agency’s charge s are sustained, the Board will review an agency -imposed
penalty only to determine if the agency conside red all of the relevant factors and
exercised management discretion within tolerable limits of reasonableness.
Adam v. U.S. Postal Service , 96 M.S.P.R. 492 , ¶ 5 (2004), aff’d , 137 F. App’x
352 (Fed. Cir. 2005). The Board will modify a penalty only when it finds that the
agency failed to weigh the relevant factors or tha t the penalty clearly exceeded
the bounds of reasonabl eness. Id. The appellant appears to allege that the
penalty of removal was unreasonable because he had above -average performance
evaluations, no prior discipline, and 8 years of service; and his misconduct was
not notorious. RPFR File, Tab 3 at 19 -20. The record reflects, however, that the
deciding official considered these factors , among others, but found that the
appellant’ s misconduct was egregious in light of his role as a police officer and
seriously compromised his credibility and reliability to perform his duties, and
that an alternative penalty would be detrimental to the organization. IAF, Tab 5
at 26 -28. Therefore , the administrative judge properly concluded that the
deciding official considered all relevant factors in his decision and that removal
was the m aximum reasonable penalty.
¶25 Accordingly, t he administrative judge’s remand initial decision is affirmed .
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U. S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
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.
19
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule re garding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within th e applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
20
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that 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, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
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,
21
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.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 described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All 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.
22
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.
23
Contact information for the courts of appeals can be 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 | ALARID_DOUGLAS_A_SF_0752_14_0256_B_2_FINAL_ORDER_2010997.pdf | 2023-03-13 | null | SF-0752 | NP |
3,399 | https://www.mspb.gov/decisions/nonprecedential/MONROE_VICKIE_M_SF_0432_16_0778_I_1_FINAL_ORDER_2010491.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VICKIE M. MONROE,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
SF-0432 -16-0778 -I-1
DATE: March 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vickie M. Monroe , Las Vegas, Nevada, pro se.
Emily Urban , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The ap pellant has filed a petition for review of the initial decision, which
dismissed the appeal of her removal as settled. 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 petitioner’s due diligence, w as not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we 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 agency removed the appellant for unacceptable performance in her
GS-7 Individual Taxpayer Advisory Spe cialist position with the agency’s Internal
Revenue Service (IRS) . Initial Appeal File (IAF), Tab 5 at 50-53, 185-92. On
appeal, t he appellant alleged, among other things, that the agency discriminated
against her on the base s of age , race, color, sex, a nd disability, and retaliated
against her for prior equal employment opportunity (EEO) activity. IAF, Tab 24 .
She requested a hearing. IAF, Tab 3. After the hearing, the parties entered into
an agreement settling the removal appeal and the appellant’s two pending EEO
complaints. IAF, Tab 45. The agency agreed that it would pay the appellant
$50,000 in compensatory damages associated with the two EEO complaints, and
rescind and remove from he r Official Personnel File the Standard Form 50
(SF-50) showing “removal,” substituting for it an SF -50 showing “resignation for
personal reasons.” The appellant agreed , inter alia, to withdraw her appeal and
both EEO complaints with prejudice, to voluntarily resign from her position, and
not to reapply to the IRS. The agreement provided that it was to be entered into
3
the record for enforcement purposes. Id. After determining that the agreement
was lawful on its face, that the parties understood and freely accepted its terms,
and that they wished it to be en tered into the record for enforcement purposes, the
administrative judge issued an initial decision that dismissed the appeal as settled.
IAF, Tab 4 6, Initial Decision (ID) at 2-3.
¶3 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agen cy has responded in opposition, PFR File, Tab 3.
ANALYSIS
¶4 On review, the appellant argues that she was mentally confused as to the
agency’s offer and made a mistake in considering what it provided. PFR File,
Tab 1 at 5. The p arty challenging the validity of a settlement agreement bears a
heavy burden of showing a basis for invalidating it. Potter v. Department of
Veterans Affairs , 111 M.S.P.R. 374 , ¶ 5 (2009) . Further, a party to a settlement
agreement is presumed to have full legal capacity to contract unless she is
mentally disabled and the mental disability is so severe that she cannot form the
necessary intent. Id., ¶ 6; Brown v. Department of the Interior , 86 M.S.P.R. 546 ,
¶ 13 (2000) . When an appellant alleges emotional distress as grounds for voiding
a settlement agreement, the Board will consider whether the appellant was
represented below , whether she has demonstrated that she was m entally imp aired
at the time of settlement, and whether she has otherwise shown that she was
unable to fully understand the nature of the settlement agreement or to assist her
representative in the appeal. Short v. U.S. Postal Service , 66 M.S.P.R. 214 , 219
(1995).
¶5 Here, the appellant was unrepresented below, including when she entered
into the settlement agreement. Although she alleged below that she was unable to
focus or concentrate because of her mental state, see, e.g., IAF, Tabs 11, 14, 19,
29, and 41, the minimal medical evidence she submit ted during adjudication of
the appeal below fails to establish that he r emotional state was such that she was
4
unable to fully understand the nature of the settlement agreement. In support of
her request for a 30 -day suspension of processing of the appeal on the basis of her
physical and mental condition, the appellant submi tted a report dated
September24, 2012, from an Occupational Medicine Consultant supporting
reasonable accommodation for the appellant due to her heart condition and high
blood pressure. IAF, Tab 19 at 17 -18. The appellant also submitted a medical
document requesting that she “be off from work” from August 24, 2015 , until
September 6, 2015, and stating that she would undergo therapy.3 Id. at 20. The
appellant failed, however, to submit medical evidence more recent than a y ear
prior to the time she filed her appeal and almost 2 years before she entered into
the settlement agreement. Therefore, the appellant has not shown that her
emotional difficulties were so severe that she could not form contractual intent
when she enter ed into the settlement agreement. Potter , 111 M.S.P.R. 374 , ¶ 7.
¶6 To establish that a settlement was fraudulent as a result of dures s or
coercion, a party must prove that she involuntarily accepted the other party’s
terms, that circumstances permitted no other alternative, and that such
circumstances were the result of the other party’s coercive acts. Parks v. U.S.
Postal Service , 113 M.S.P.R. 60 , ¶ 4 (2010) . The appellant has made no such
allegation regarding the agency representative. She does argue that she was
unaware that the settlement agreement covered both of her EEO complaints ,
thereby rendering insufficient the amount of compensatory damages offered by
the agency , and she seeks a supplemental agreement to include an additional
award of compensatory dam ages. PFR File, Tab 1 at 4 -5. The appellant’s claim
is unavailing inasmuch as the agreement specifically provides that it is in full and
s complete settlement of the removal appeal and both EEO complaints , each
identified by case number. IAF, Tab 45 at 4. As such, t he appellant has provided
3 In that same submission, the appellant provided a series of medical documents that
appear to bear the name of another patient. IAF, Tab 19 at 6, 8 -13, 15 -16.
5
no basis for her claim that a supplemental agreement should include an additional
award of compensatory damages beyond th at provided for in the agreement.
¶7 The appellant a lso a rgues that the agreement should not hav e included the
provision precluding her from applying to any IRS office because “that was not
the original agreement.” PFR File, Tab 1 at 5 ; IAF, Tab 45 at 4. However, to the
extent that there may have been earlier iterations of draft settlement agreemen ts,
the agreement that the appellant ultimately signed is the o ne that formed the basis
for dismissing her appeal here at issue. An appellant’s mere post -settlement
remorse or change of heart cannot serve as a basis for setting aside a valid
settlement agreement. Potter , 111 M.S.P.R. 374 , ¶ 6.
¶8 In addition, th e appellant argues that the provision precluding her from
applying to any IRS office should not have been included in the agreement
because “the Older American Act (sic) was not ever considered during any
discussions.” PFR File, Tab 1 at 5. The appellant’s reference appears to be to the
Older Workers Benefit Protection Act (OWBPA). Under the OWBPA, a
settlement agreement in an appeal in which the appellant alleges age
discrimination must meet the requirem ents of 29 U.S.C. § 626(f)(1)(A) -(E), and
an appellant must be given a reasonable period of time within which to consider
the agreement. 29 U.S.C. § 626(f)(1), (2 ); Lange v. Department of the I nterior ,
94 M.S.P.R. 371 , ¶ 7 (2003) . As previously noted, the appellant raised age
discrimination in connection with her removal . IAF, Tab 24 . Despite the
appellant’s claim that the OWBPA was not considered, t he administrative judge
in fact found that the settlement agreement complied with the provisions of
OWBPA before dism issing the appeal as settled. ID at 2; I AF, Tab 45 at 6 -7.
Therefore , the appellant has not shown any error in the initial decision regarding
the OWBPA that would affect the validity of the settlement agreement . Hinton v.
Department of Veterans Affairs , 119 M.S.P.R. 129 , ¶ 7 (2013).
¶9 Finally, the appellant argues on review that she was denied the opportunity
to file an “Amended Hearing Complaint” and exhibits, and that she was thereby
6
harmed by not being able to present her case which, she contends, “would have
caused the Judge not (sic) to make the correct decision in [her] favor.” PFR File,
Tab 1 at 3. The appellant further argues that she did not submit certain
documents to the administrative judge during proceeding s below because she was
mentally and physically unable to do so, and that she was not able to think clearly
because of her mental state and because she was continuing to seek counsel and
was taking prescribed medications to attempt to function properly. Id. at 4.
However, the appellant has not shown that these matters had any bearing on her
subsequent decisio n to settle her appeal.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking s uch
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provid e legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decisi on, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, colo r, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). Yo u must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case ,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be a ddressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to y ou only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices describe d in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 exp ired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of A ppeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MONROE_VICKIE_M_SF_0432_16_0778_I_1_FINAL_ORDER_2010491.pdf | 2023-03-10 | null | SF-0432 | NP |
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