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3,500	https://www.mspb.gov/decisions/nonprecedential/ARELLANES_RALPH_D_DE_0752_15_0021_C_1_FINAL_ORDER_2004186.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RALPH D. ARELLANES, SR., Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DE-0752 -15-0021 -C-1 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 American Federation of Government Employees , Albuquerque, New Mexico, for the appellant. Michelle Hernandez , Albuquerque , New Mexico, for the appellant. J. Michael Sawyers , Esquire, Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Vice Chairman Harris issues a separate opinion concurring in part and dissenting in part. FINAL ORDER ¶1 The appellant has filed a petition for review of the compliance initial decision, which denied his petition for enforce ment and found that the agency 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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 complied with the December 7, 2015 initial decision by cancelling the appellant’s removal and issuing a Standard Form 50 (SF -50) reflecting that he retired on disability. Generally, we grant petitions such as this one only i n 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 a dministrative 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 e xpressly MODIFIED to address the appellant’s claim for interim relief, and find that the appellant was not judicially estopped from arguing that he was ready, willing, and able to work, we AFFIRM the initial decision. BACKGROUND ¶2 On September 30, 2014, the agency removed the appellant from his GS-12 Database and Program Integration Specialist position for conduct unbecoming a Federal employee. Arellanes v. Department of Defense , MSPB Docket No. DE-0752 -15-0021 -I-1, Initial Appeal File (IAF), Tab 6 at 13, 15-23. Shortly thereafter, the appellant applied for disability retirement under the Federal Employees’ Retirement System (FERS) based on his carpal tunnel, trigger finger surgeries, a broken back, and “chronic, constant, [and] excruciating pain” in his back, hands, fingers, wrists, shoulders, back, and legs . Arellanes v. Department of Defense , MSPB Docket No. DE-0752 -15-0021 -C-1, Compliance File (CF), 3 Tab 4 at 22 -23; Arellanes v. Department of Defense , MSPB Docket No. DE-0752 - 15-0021 -C-1, Compliance Petiti on for Review (CPFR) File, Tab 6 at 23 -24.2 In January 2015, the Office of Personnel Management (OPM) approved the appellant’s application for disability retirement benefits with an effective date of October 1, 2014 . CF, Tab 4 at 34-35, 38. ¶3 The appellant filed a timely Board appeal challenging his removal and raising affirmative defenses of age, race, and ethnicity discrimination , failure to accommodate his disability , and reprisal for whistleblowing and equal employment opportunity (EEO) activity. IAF, Tab 1 , Tab 21 at 2. After holding the appellant’s requested hearing , the administrative judge issued an initial decision denying the appellant’s affirmative defenses and affirming his removal. IAF, Tab 9, Tab 39, Initial Decision (ID) . The appellant fil ed a petition for review challenging the initial decision. Arellanes v. Department of Defense , MSPB Docket No. DE -0752 -15-0021 -I-1, Petition for Review File, Tab 1. T he Board affirmed the ad ministrative judge’s findings that the agency proved the charge and that the appellant did not prove his discrimination and EEO reprisal affirmative defenses, but found that he established a prima facie case of whistleblower reprisal by showing that he made a protected disclosure that was a contributing factor in his r emoval. Arellanes v. Department of Defense , MSPB Docket No. DE -0752 -15-0021 -I-1, Remand Order (R emand Order), ¶¶ 5-7, 9-14 (Aug. 10, 2015) . Therefore, the Board remanded the appeal to adjudicate whether the agency met its burden to prove that it would have removed the appellant in the absence of his whistleblowing. R emand Order, ¶¶ 15-18. ¶4 On remand, the administrative judge found that the agency did not meet its burden of showing by clear and convincing evidence that it would have removed 2 Although the appellant’s statement of disability and his supervisor’s statement accompanying his application are dated July 18, 2014, he did not submit his disability retirement application to the Office of Personne l Management until after his removal in October 2014. CF, Tab 4 at 17-18, 22 -23; CPFR File, Tab 6 at 23-24. 4 the appellant absent his protected disclosure . Arellanes v. Department of Defense , MSPB Docket No. DE -0752 -15-0021 -B-1, Remand File (RF), Tab 9, Remand Initial Decision (RID) at 1 -2, 11. Accordingly, the administrative judge reversed the appellant’s removal and order ed the agency to retroactively restore him to his former position effective September 30, 2014, and to provide him with appropriate back pay and benefits. RID at 11-12. The administrative judge also ordered the agency to provide interim relief if either party filed a petition for review. RID at 12-13. The remand initial decision became final on January 11, 2016, after neither party filed a petition for review. RID at 14. ¶5 The agency cancelled the appellant’s removal and issued a new SF-50 reflecting that he retired on disability effective September 30, 2014, but took no further action to implement the relief ordered by the administrative judge . CF, Tab 4 at 12-13, 15. The appellant filed a petition for enforcement alleging that the agency failed to com ply with the administrative judge’s order to retroactively restore him to duty and to provide him back pay and benefits.3 CF, Tab 1 at 7 -10. The appellant also argued that the agency failed to comply with the administrative judge’s order of interim relie f. Id. at 11 -12. In response, the agency asserted that, by issuing a new separation SF -50, it returned the appellant to the position he would have been in but for the removal, i.e., retired on disability. CF, Tab 4 3 The appellant also alleged that the agency was in noncompliance with the administrative judge’s order because it had “paid zero consequential dam ages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages[;] zero compensation with respect to the Whistleblower Protection Enhancement Act of 2012[;] nor the award of compensatory damages inclu ding interest, reasonable expert witness fees, and representative costs.” CF, Tab 1 at 11. The administrative judge construed these allegations as a motion for damages and docketed a separate damages proceeding. Arellanes v. Department of Defense , MSPB Docket No. DE -0752 -15-0021 -P-1, Damages File (D F), Ta b 2. After notifying the appellant of the applicable law and his burden of proof to establish his entitlement to damages and affording the parties an opportunity to respond, the administrative judge issued an addendum initial decision denying the appellant’s request for damages. Id. at 2-3; DF, Tab 3. The appellant did not file a petition for review of the addendum initial decision. 5 at 9-10. The agency further claimed t hat the appellant’s status as a disability annuitant precluded him from being reinstated or awarded back pay. Id. The appellant replied he could return to work if the agency provided him reasonable accommodations and argued for the first time that the ag ency should restore him to his former position as a reemployed annuitant. CF, Tab 6 at 9-10. ¶6 The administrative judge issued a compliance initial decision denying the appellant’s petition for enforcement. CF, Tab 8, Compliance Initial Decision (CID) at 1, 4. He reasoned that the appellant was “judicially estopped from contending that he should be reinstated with back pay” because OPM “accepted [his] contention tha t he was disabled from performing his duties and was therefore entitled to retire on disability at the time of his separation.” CI D at 2 -3. The administrative judge alternatively found that the appellant’s receipt of a disability retirement annuity estab lished that he was not ready, willing, and able to work. CID at 3-4. ¶7 The appellant has filed a petition for review of the compliance initial decision again arguing that he is entitled to back pay and interim relief and that he should be returned to work a s a reemployed annuitant because he is ready, willing, and able to return to work with a reasonable accommodation.4 CPFR File, Tab 1 at 3. The agency has responded in opposition to the appellant’s petition for review, and the appellant replied to the age ncy’s response . CPFR File, Tab s 3-4. The Board subsequently issued an order seeking additional information regarding the appellant’s eligibility for back pay, and both parties have responded. CPFR File, Tabs 5 -7, 9-10. 4 In support of his contention that he is now ready, willing, and able to return to work with accommodation, the appellant has submitted for the first time on review an August 23, 2016 medical note from his personal physician. CPFR File, Tab 1 at 11. 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 record was closed despite the party’s due diligence. Avansino v. U.S. Post al Service , 3 M.S.P.R. 211 , 214 (1980). Because the August 23, 2016 note postdates the close of the record below, we will consider it for the fir st time on review. 6 ANALYSIS The appellant is not en titled to interim relief. ¶8 The administrative judge did not address the appellant’s claim for interim relief, which he reasserts on review. CF, Tab 1 at 11 -12; CPFR File, Tab 1 at 3. We find that the appellant is not entitled to interim relief because nei ther party filed a petition for review of the remand initial decision. 5 U.S.C. § 7701 (b)(2)(A); see Laviene v. U.S. Postal Service , 53 M.S.P.R. 238 , 242 (1992) (finding that interim relief is available only if a petition for review is filed). Because the appellant is not entitled to any interim relief, he was not prejudiced by th e administrative judge’s failure to address this argument below. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). The appellant is not judicially estopped from arguing that he was ready, willing, and able to work. ¶9 The administrative judge found that the appellant is judicially estopped from arguing th at he was, and is, ready, willing, and able to return to work because, in granting his application for disability retirement, OPM determined that he was not able to render useful and efficient service with or without a reasonable accommodation. CID at 2-3. In finding judicial estoppel appropriate here, the administrative judge relied on Tompkins v. Department of the Navy , 80 M.S. P.R. 529 , ¶ 8 (1999), in which the Board held that an appellant was judicially estopped from raising an involuntary disability retirement claim because he had sought and obtained a Board decision that he was entitled to disability retirement. We find that Tompkins is distinguishable from the instant case because, unlike in Tompkins , the appellant has not litigated the issue of his entitlement to disability retirement benefits bef ore the Board. CF, Tab 4 at 17-18, 34. ¶10 Instead, we rely on Lamberson v. Depar tment of Veterans Affairs , 80 M.S.P.R. 648 (1999) , which the Board issued after Tompkins , in finding that the appellant is not jud icially estopped from challenging his entitlement to 7 reinstatement and back pay because of his status as a disability annuitant. In Lamberson , the Board found that an employee’s application for, or receipt of, Civil Service Retirement System (CSRS) or FER S disability retirement benefits did not judicially estop her from claiming that the agency discriminated against her on the basis of disability in imposing her removal . Id., ¶¶ 15-30. It reasoned that applying judicial estoppel was inappropriate when there wa s no litigation surrounding the employee’s application for disability retirement, as OPM’s decision in that instance would improperly supplant the Board’s function of determining in a fully litigated appeal of the agency’ s removal action whether an employee could have been accommodated. Id., ¶¶ 16-17. Moreover, the Board noted that OPM’s grant of disability retirement did not necessarily resolve all of the issues present in a disability discrimination claim. Id., ¶ 22. Fi nally, the Board found that applying judicial estoppel to foreclose a disability discrimination claim that could, if proven, cause the reinstatement of an employee simply because she applied for or received disability retirement benefits would thwart Congr ess’s intent that continuation of work with accommodation is preferred over disability retirement. Id., ¶ 24. As such, the Board determined that it was necessary to review the facts of the particular case, including the employee’s statements made in the retirement proceedings, to evaluate her disability discrimination claims. Id., ¶¶ 18, 30. ¶11 The same considerations for declining to create an absolute procedural bar on the basis of the employee’s disability retirement status in Lamberson are applicable he re. We therefore also decline to apply judicial estoppel to preclude reinstatement and back pay. The a gency has complied with the administrative judge’s order to reinstate the appellant and pay him appropriate back pay and benefits . ¶12 When the Board finds that an employee has been the victim of an unjustified or unwarranted personnel action, the goal is to return the employee to the status quo ante, i.e., to place him, as nearly as possible, in the circumstances 8 he would have been in ha d the personnel action never taken place. See Kerr v. National Endowment for the Arts , 726 F.2d 730 , 733 (Fed. Cir. 1984); Paula v. Social Secur ity Administration , 119 M.S.P.R. 138 , ¶ 18 (2013) . Thus, upon finding that the appellant’s removal could not be sustained, the administrative judge properly ordered the agency to cancel the appellant’s removal, to reinstate him to his former position effective September 30, 2014, and to provide him the appropriate amount of back pay and benefits. RID at 11-12; see Paula , 119 M.S.P.R. 138 , ¶ 18. The appellant is not entitled to back pay and benefits. ¶13 Generally, status quo ante relief includes back pay and ben efits that the appellant would have received but for the unjustified or unwarranted personnel action. 5 U.S.C. § 5596 (b)(1)(A)(i); Bartel v. Federal Aviation Administration , 24 M.S.P.R. 560 , 564 -65 (1984) . Consistent with OPM’s regulations and the Board’s case law, however, an employee is not entitled to back pay for any peri od of time during which he was not “ready, willing, and able” to perform his duties because of an incapacitating illness or injury, or for reasons unrelated to or not caused by the unjustified or unwarranted personnel action . 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); 5 C.F.R. § 550.805 (c). The agency bears the initial burden of proving that it has provided an appellant the appropriate amount of back pay. King , 100 M.S.P.R. 116 , ¶ 13. When the agency produces “concrete and positive evidence, as opposed to a mere theoretical argument ,” that the appellant was not ready, willing, and able to work during all or part of the period during which back pay is claimed, the burden of proof shifts to the appellant to show his entitlement to back pay . Id. (quoting Piccone v. United States , 407 F.2d 866 , 876 ( Cl. Ct. 1969)); see Davis v. Department of the Navy , 50 M.S.P .R. 592 , 598 (1991) (finding that, when an agency presents a “substantial basis ” for questioning the 9 appellant ’s ability to work, it is incumbent upon the appellant to show that he was ready, willing , and able to work during the relevant period). ¶14 Here, the agency argues that the appellant was not ready, willing, and able to perform his duties as of September 30, 2014, because he began the process of applying for a disability retirement annuity prior to his removal and ultimately received it effective Octobe r 1, 2014.5 CF, Tab 4 at 4, 9 -10; CPFR File, Tab 3 at 10-13. Because entitlement to a disability retirement under FERS requires a finding by OPM that the employee is “unable, because of disease or injury, to render useful and efficient service” in his po sition, 5 U.S.C. § 8451 (a)(1)(B), we find that the agency has put forth a substantial basis for questioning the appellant’s ability to work. Therefore, the appellant has the burden of proof to show that he was ready, willing, and able to work during the period for which he requests back pay. See King , 100 M.S.P.R. 116 , ¶ 13. ¶15 The Board advised the appellant of his burden in its June 23, 2017 Order on eligibility for back pay. CPFR File, Tab 5 at 2. In the order, the Board observed that, although the appellant submitted an August 23, 2016 note from his personal physician, statin g that he is “now ready, willing and able to return to work with reasonable accommodations ,” the note did not explain exactly what the appellant’s current or continuing medical conditions were or his prognosis. Id. at 1; CPFR File, Tab 1 at 11. The Board further noted that some record evidence suggests that the appellant was unable to perform the core functions of his job. CPFR File, Tab 5 at 3. Specifically, the Board identified a note written by the same physician on August 6, 2014 —less than 2 months before the appellant’s 5 The appellant has repeatedly stated that he “officially” retired effective April 28 or 30, 2015, and that he received disability retirement annuity payments beginning that date. CF File, Tab 6 at 5; CPFR File, Tab 1 at 3, 5, 9, Tab 4 at 9. The record does not support this claim. Rather, the record reflects, and the appellant appears to concede in his July 11, 2017 declaration, that OPM approved his disability retirement application in January 2015 with an effective date of October 1, 2014, and that he has received monthly disability annuity payments since tha t date. CPFR File, Tab 6 at 18, Tab 9 at 30; CF, Tab 4 at 34 -35, 38. 10 removal —stating that he “continues to have significant pai n to the hands and back that do not allow him to perform his job,” opining that “[f] urther treatment is unlikely to provide any significant benefit, ” and recommending that the appellant be “considered for medical disability.” Id. at 4; IAF, Tab 19 at 90. Further, in the appellant’s prehearing submissions, he claimed that he suffered a “serious work -related accident” and that, at the time of his removal, he was “suffering from serious disability in the form of a fractured back (compression f ractures to the spine at L -2 and L-4 and carpal tunnel syndrome in both hands with multiple surgeries), as wel l as Trigger Finger problems.” IAF, Tab 19 at 4. Accordingly, the Board ordere d the parties to submit evidence detailing the appellant’s medical condition s as they pertain to whether or not he was ready, willing, and able to work during the period for which he is requesting back pay ; clarify the period after his separation for which he was or was not entitled to receive back pay; and provide supporting documentation.6 Id. at 5. ¶16 In response, the appellant provided a sworn declaration and argument that he is entitled to back pay from September 30, 2014, to present because he “was always ready, willing, and able to continue working as long as the agency provided reasonable accommodations.” CPFR File, Tab 6 at 9, 15. In addition, he submitted a June 27, 2017 note from the same physician who wrote the August 6, 2014 and August 23, 2016 notes stating that, despite his earlier recommendation that the appellant be considered for disability retirement, the appellant “continued physical therapy and continued to improve” and “essentially was ready to return to work with acc ommodations to his workstation without endangering the safety or health of himself or others on September 30, 2014[.]” 6 The Board also ordered the parties to submit any evidence regarding the appellant’s receipt of Office of Workers’ Compensation Program (OWCP) benefits, which would affect the amount of back pay to which he may be entitled. CPFR File, Tab 5 at 4-5. Both parties responded with evidence showing that the appellant has not received any OWCP benefits for the peri od for which he is now requesting back pay. CPFR File, Tab 6 at 18, Tab 7 at 5 -6. 11 Id. at 21. The physician further states that the appellant “has been and is ready and able to perform all aspects of his job with reaso nable accommodations to his workstation which would include a full ergonomic evaluation[], [speech recognition] software, an ergonomic chair and a desk that has adjustable height to allow him to sit or stand.” Id. ¶17 In assessing the probative weight of me dical opinion, the Board considers whether the opinion was based on a medical examination, whether the opinion provided a reasoned explanation for its findings as distinct from mere conclusory assertions, the qualifications of the expert rendering the opin ion, and the extent and duration of the expert’ s familiarity with the appellant’ s treatment. Wren v. Department of the Army , 121 M.S.P.R. 28 , ¶ 9 (2014) . We find the June 27, 2017 opinion by the appellant’s physician that he could have performed his duties as of September 30, 2014, is entitled to little weight because it does not reflect that the physician has examined the appellant since August 2014, states no clinical findings, and provides little in the way of a reasoned explanation for the appellant’s improvement other than his “continued physical therapy.” CPFR File, Tab 6 at 21. Further, it conflicts with the same physician’s August 6, 2014 note stating that the appellant’s conditions “do not allow him to perform his job” and his August 23, 2016 note stating that the appellant “was disabled” but is “ now ready, willing and able to return to work with reasonable accommodations.” IAF, Tab 19 at 90; CPFR File, Tab 1 at 11 (emphasis added), Tab 6 at 21; Wren , 121 M.S.P.R. 28 , ¶¶ 9-11 (finding that a bare medica l opinion without a discussion of its basis did not outweigh the great weight of other, consistent reports completed over a 2 year period) . In addition, we find that the June 27, 2017 note is entitled to little weight because it is retrospective and opine s on the appellant’s ability to work more than 2 years earlier, whereas the other notes pertain to the appellant’s contemporaneous ability to work. See Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 24 (2016) (finding that an administrative judge appropriately assigned greater weight to statements 12 completed closer in time to the events in question ). We find the physic ian’s August 6, 2014 note —based on his contemporaneous observation and treatment of the appellant —to be the most probative of the appellant’s ability to work as of September 30, 2014. IAF, Tab 19 at 90. In addition to specifically stating that the appellant’s medical conditions precluded him from performing his job, th e August 6, 2014 note enumerates the conditions for which the appellant was being treated, including bilateral hand pain, carpal tunnel, lumbar radiculopathy, and lumbar disc disease, and explained that the appellant continued to have “significant pain to the hands and back” and that further treatment was unlikely to provide any significant benefit. Id. ¶18 We also find unpersuasive the appellant’s sworn declaration stating that he was ready, willing, and able to return to work as of September 30, 2014, so long as the agency provided him certain accommodations because it is inconsistent with his prior statements. See Elder , 124 M.S.P.R. 12 , ¶ 24; Hillen v. Department of the Army , 35 M.S.P.R. 453 , 459 (1987) (discussing factors relevant to determining credibilit y, including whether a witness has made prior inconsistent statements) . In particular, the appellant stated in a July 2014 email that his “hands and back have gotten much worse,” his “back pain has elevated to an excruciating level where [he] can hardly c oncentrate,” and that he had “a broken back in two places, which is causing headaches, numbness to [his] legs and lower back, lack of proper sleep and rest, and any kind of movement is painful.” IAF, Tab 17 at 79-80. In his July 18, 2014 statement of dis ability, he asserted that his “chronic, constant, [and] excruciating pain from [his] broken back, hands, fingers, wrists, and shoulders” interfered with performance of his duties, attendance, or conduct; that he could not type due to “severe carpal tunnel [and] trigger finger surgeries”; and that he had a “broken back in two places and suffer[ed] from chronic pain to [his] back and legs.” CPFR File, Tab 6 at 23. The appellant’s sworn statement is also inconsistent with the August 6, 2014 statement by his physician and is further discredited by the fact that he began his application for 13 disability retirement in July 2014, submitted it in October 2014, and has been receiving a disability retirement annuity through, at least, the date of his July 11, 2017 res ponse to the Board’s order on his eligibility for back pay. Id. 18, 23 -24; CF, Tab 4 at 17 -18, 22 -23, 34 -35, 38. ¶19 We further find no merit to the appellant’s contention that speech recognition software and an ergonomic workstation would have rendered him ready, willing, and able to perform his duties as of September 30, 2014. The record reflects that the appellant requested these reasonable accommodations in June and July 2014 ; that in July 2014, t he agency provided him with speech recognition software and asked for additional paperwork to facilitate the ergonomic assessment ; and that, although his requested reasonable accommodations were apparently provided or in process, he nonetheless began his application for disability retirement in July 2014, indica ting that the agency had been unable to grant his requested reasonable accommodations but were “working on the ergonomic assessment.”7 CPFR File, Tab 6 at 23; CF, Tab 4 at 17-18, 22 -23; IAF, Tab 17 at 74, 76, 78 -79, 82 -85, Tab 18 at 26, 35 -36. In additio n, the appellant has not explained, and we fail to see, how speech recognition software and an ergonomic workstation would have allowed him to perform his duties in light of his self -described “chronic, constant, [and] excruciating pain from [his] broken b ack, hands, fingers, wrists, and shoulders.”8 CPFR File, Tab 6 at 23; cf. Clemens v. Department of the Army , 120 M.S.P.R. 7 According to the appellant, the agency failed to provide him a microphone for the speech recognition software “for several weeks” and provided him “no training” on how to use it. CPFR File, Tab 6 at 16 -17. A memorandum contained in the record reflects, however, that the appellant was provided a tutorial for the software but that, as of July 24, 2014, he had not reviewed it. IAF, Tab 17 at 84. 8 In the merits proceeding , the administrative judge found that the appellant failed to establish that there existed any particular reasonable accommodation that the agency denied or negligently failed to give him at any particular time that led to his removal for conduct unbecomin g a Federal employee. ID at 28 -29. The Board affirmed this finding, R emand Order, ¶ 9, and neither party challenged it. 14 616, ¶ 17 (2014) (explaining that an appellant alleging a denial of reasonable accommodation has a burden of proving the existence of such an accommodation). Therefore, we find that the appellant has not met his burden to show that he was ready, willing, and abl e to perform his duties as of September 30, 2014, even with his requested accommodations. ¶20 In the alternative, the appellant’s physician appeared to state that he was ready, willing, and able to return to work as of August 23, 2016. CPFR File, Tab 1 at 11. Specifically, the August 23, 2016 note provides, in its entirety, as follows: [The appellant] was disabled and medically retired due to carpal tunnel syndrome, degenerative disc disease of the lumbar spine, and lumbar radiculopathy. He has sinc e undergone intense physical therapy, massage therapy and proper medical treatment for his injuries. Given his current medical condition, he is now ready, willing and able to return to work with reasonable accommodations which include: [speech recognitio n software], ergonomic chair and adjustable work station that allow him to sit and stand. Id. Although this note opines on the appellant’s contemporaneous ability to work and does not necessarily conflict with the physician’s earlier note or other recor d evidence from 2014, we find that it is insufficient on its own to establish the appellant’s entitlement to back pay as of August 23, 2016. The appellant has not submitted any documentation of the “proper medical treatment” and “physical therapy” referen ced by his physician or any other evidence substantiating the claim that he had improved as of August 23, 2016. Further, as discussed above, the appellant’s physician has not stated that he personally examined the appellant or provided any clinical findin gs or contemporaneous treatment notes. See Wren , 121 M.S.P.R. 28 , ¶ 9. Moreover, i n light of the appellant’s physician’s inconsist ent statements regarding the appellant’s ability to perform his duties , we find that there is reason to doubt the truthfulness of his statements. See Hillen , 35 M.S.P.R. at 459; IAF, Tab 19 at 90; CPFR File , Tab 1 at 11, Tab 6 at 21. 15 Therefore, absent any supporting evidence, we decline to credit the appellant’s physician’s opinion that the appellant was ready, willing, and able to perform his duties as of August 23, 2016, with or without a reasonable accommodation . ¶21 In sum, although the appellant was g iven an opportunity to show that he was ready, willing, and able to perform the duties of his prior position for the period for which he requests back pay, his submissions fail to resolve the conflicts between his prior statements and other record evidence showing that he was not ready, willing, and able to perform the duties of his prior position at the time of his removal or since. Therefore, we find that he has not established his entitlement to back pay for this period and conclude that the agency is i n compliance with the administrative judge’s order to provide the appellant with appropriate back pay and benefits. The agency has complied with the administrative judge’s order to reinstate the appellant to his former position. ¶22 Generally, to be in complia nce with a Board order to reinstate an employee, an agency must return the employee to his former position. Miller v. Department of the Army , 109 M.S.P.R. 41 , ¶ 11 (2008). If the agency does not return the employee to his former position, it must show that (1) it has a strong overriding interest or compelling reason requiring reassignment to a different position, and (2) it has rea ssigned the employee to a position that is substantially similar in scope and status to his former position. Id.; Taylor v. Department of the Treasury , 43 M.S.P.R. 221 , 224 -25 (1990). ¶23 Here, the agency did not reinstate the appellant to his position following the Board’s final decision reversing the removal. The agency did cancel the removal effective September 30, 2014, CF, Tab 4 at 12 , thereby retroactively reinstating the appellant to his position. However, because the appellant began receiving disability retirement benefits effective October 1, 2014 , based on OPM’s determination that he was unable to render useful and efficient service in his position with or without accommodation, the agency retroactively separated the 16 appellant by disability retirement effective September 30, 2014. Id. at 13. In light of OPM’s grant of disability retirement benefits effective October 1, 2014, and our finding that the appellant failed to establish he was ready, willing, and able to work at any point following his removal, we find that there is no further relief the agency can provide under the unique circumstances of this case. The cancellation of the appellant’s removal does not require the agency to also reverse an intervening separation. See Washington v. Tennessee Valley Authority , 22 M.S.P.R. 377, 379 -80 (where an employee would have been properly subject to separation by reduction in force ( RIF) if he had not been previously removed for ca use, the agency had authority to retroactively separate the employee by RIF after the Board ordered it to rescind the removal action), aff’d, 770 F.2d 180 (Fed.Cir.1985) (Table) . Accordingly, we affirm the compliance init ial decision as modified by this Final Order.9 NOTICE OF APPEAL RIG HTS10 The compliance initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claim s determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the 9 The Board’s decision in Paula , 119 M.S.P.R. 138 , is distinguishable from this case. Paula involved an immediate retirement under 5 U.S.C. § 8336 (c). 119 M.S.P.R. 138 , ¶ 3. Thus, the Board was not faced with the question presented here, which is the nature of the relief available when an appellant has retired on disability. In addi tion, the appellant in Paula retired on the same date his removal would have taken effect “solely due to the agency’s final decision to remove him.” 119 M.S.P.R. 138 , ¶¶ 3, 17. Here, there is no comparable finding that this appellant retired on disability shortly after his removal solely due to the agency’s final decision to remove him. Rather, as set forth above, he was unable, bec ause of disease or injury, to render useful and efficient service in his position , and otherwise not ready, willing, and able to work. 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights inclu ded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 17 following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your cas e, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 yo u are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimin ation . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action 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 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 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 c ompetent jurisdiction.11 The court of appeals must receive your 11 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of com petent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 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 court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 w ith the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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/Co urtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board SEPARATE OPINION OF VICE CHAIRMAN CATHY A. HARRIS, CONCURRING IN PART AND DISSENTING IN PA RT in Ralph D. Arellanes, Sr. v. Department of Defense MSPB Docket No. DE -0752 -15-0021 -C-1 ¶1 For the reasons set forth below, I dissent from the majority opinion in this case. Upon finding that the appellant’s removal could not be sustained, the administrative judge properly ordered the agency to cancel the appellant’s removal, reinstate him to his former position effective September 30, 2014, and provide him the appropriate amount of back pay and benefits. Arellanes v. Department of Defense , MSPB Docket No. DE -0752 -15-0021 -B-1, Remand File, Tab 9, Remand Initial Decision. The majority opinion finds , nonetheless, that the appellant is not entitled to back pay and benefits and that the agency has complied with the administrative jud ge’s order to reinstate the appellant to his position. ¶2 I agree with the majority that the appellant is not entitled to back pay and benefits for the period since his removal because he has not met his burden to show that he was ready, willing, and able t o perform the duties of his prior position. However, I disagree that the agency is in compliance with the administrative judge’s order to reinstate the appellant to his former position. ¶3 The agency bears the burden to prove its compliance with the Board ’s order. Paula v. Social Security Administration , 119 M.S.P.R. 138 , ¶ 19 (2013). Generally, to be in compliance with a Board order to reinstate an employee, an agency must return the employee to his former position. Miller v. Department of the Army , 109 M.S.P.R. 41 , ¶ 11 (2008). If the agency does not return the employee to his former position, it must show that (1) it has a strong overriding interest or compelling reason requiring reassignment to a different position, and 2 (2) it has reassigned the employee to a position that is substantially similar in scope and status to his former position. Id. ¶4 Here, as the majority opinion concedes, the agency did not reinstate the appellant to his positio n following the Board’s final decision reversing the removal. Indeed, the agency has not reinstated the appellant to any position. Nor has the agency presented any “strong and overriding interest or compelling reason” as to why it cannot return the appel lant to his former position. ¶5 In determining the relief available to the appellant, the majority relies on the agency’s issuance of a Standard Form 50 cancelling the removal effective September 30, 2014, and the fact that the appellant began receiving dis ability retirement benefits effective October 1, 2014. However, the record reflects that the appellant applied for, and received, a disability retirement only after the agency imposed his removal. The majority’s reliance on the appellant’s disability retirement status in determining the relief available to the appellant is contrary to statute. ¶6 Under 5 U.S.C. § 7701 (j), an appellant’s “ status under any retirement system established by or under F ederal statute[,] [or] any election made . . . under such system may [not] be taken into account ” in determining the appealability of “any case involving a removal from the service.” The Board has found that section 7701(j) prevents it from considering an appellant’s election of an immediate retirement annuity in determining the remedy available to the appellant. Paula , 119 M.S.P.R. 1 38, ¶¶ 3, 11 -16. In Paula , the Board considered and rejected the agency’s argument that the legislative history of section 7701(j) evinces only an intent to permit employees to “pursue a ‘clean record’ through the appeal process,” rather than to obtain fu ll reinstatement and back pay . Id., ¶15. The Board found that neither the legislative history related to this amendment, nor relevant U.S. Court of Appeals for the Federal Circuit precedent, limited the scope of relief available to a retired employee who prevails on his removal claim. The Board in Paula ultimately found that the agency was 3 noncompliant because, while it had canceled the appellant’s removal, it had neither reinstated him nor paid him back pay or benefits. Id., ¶19. As such, I disagree w ith the majority that Paula is distinguishable from the instant case. The statute refers to “any retirement system” and therefore the fact that the appellant received a disability retirement in this case should not matter. Thus, the Board in the instant case cannot rely upon the appellant’s retirement status in determining the scope of relief available to him in his removal appeal. ¶7 I appreciate the majority’s concerns about restoring an appellant to his position when he is not ready, willing and able to work. However, it is the agency’s burden to show that it had a strong overriding interest or compelling reason to reassign the appellant to a different position if it could not return him to his former position —a burden the agency has failed to meet here . If the agency was concerned about the appellant returning to his former position, it could have reassigned him to another position. The appellant’s entitlement to disability retirement was specific to his former position and would not have precluded th e agency from considering other positions. See Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 , ¶ 20 (2012) (finding that the ultimate question is whether an employee’s medical impairments preclude her from rendering useful and efficient service in her position). In sum, the burden of establishing compliance with the Board’s order is on the agency, and the agen cy has failed to meet this burden under the circumstances. For these reasons, I respectfully dissent. /s/ Cathy A. Harris Vice Chairman	ARELLANES_RALPH_D_DE_0752_15_0021_C_1_FINAL_ORDER_2004186.pdf	2023-02-21	null	DE-0752	NP
3,501	https://www.mspb.gov/decisions/nonprecedential/LIBERTINY_GUIDO_C_DA_0841_16_0520_I_1_REMAND_ORDER_2004190.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GUIDO C. LIBERTINY, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DA-0841 -16-0520 -I-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Guido C. Libertiny , Schertz, Texas, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for revie w of the initial decision, which reversed in part and remanded in part the decision of the Office of Personnel Management (OPM) to exclude the appellant’s military service from the computation of his civil service retirement a nnuity . Generally, we grant petitions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 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 er roneous 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 er ror affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). For the reasons discussed below, we DENY the appellant’s petition for review , AFFIRM the initial decision, and REMAND the case to OPM to further develop the record . BACKG ROUND ¶2 The appellant retired from the U.S. Air Force (USAF ) on February 28, 1993, after 21 years, 7 months, and 15 days of active duty. Initial Appeal File (IAF), Tab 10 at 36. He entered on duty with t he U.S. Postal Service (USPS) on March 16, 1996 , and was employed until he retired under the Federal Employees’ Retirement System (FERS) on November 30, 2014. Id. at 9, 37 . Following his retirement from the USPS, the appellant re ceived his FERS annuity, combat -related special compensation (CRSC) benefits, and military retired pay. Id. at 6, 9, 21. ¶3 OPM’s initial decision indicates that the appellant requested credit for his military service for purposes of computing his FERS annuity but that OPM denied his request because he already was receiving military retired pay that was not awarded on the basis of combat -incurred injuries . Id. at 11. The appellant requested recons ideration of the decision . Id. at 9. Upon reconsideration, OPM affirmed its decision. Id. at 6-8. OPM stated that the appellant could not receive credit for his military service because he did not waive his military retired pay. 3 Id. at 6. OPM further stated that he did not demonstrate an exception to this general rule because he did not sufficiently document a service -connected disabil ity that was combat -incurred or that he experienced an injury that was the primary basis for his military retirement . Id. at 6-7. ¶4 The appellant filed the instant Board appeal challenging OPM’s reconsideration decision . IAF, Tab 1. He did not request a h earing. Id. at 4. The administrative judge issued an initial decision on the basis of the written record affirming the reconsideration decision in part and remanding it in part. IAF, Tab 14, Initial Decision (ID). She found that OPM correctly determined that the appellant did not establish his entitlement to military service credit in his FERS annuity on the basis of a service -connected disability . ID at 4 -7. However, she remanded the appeal for OPM to develop the issue of wheth er to otherwise credit the appellant’s military service in computing his FERS annuity . ID at 8 -10. ¶5 The appellant filed a petition for review to which OPM did not respond . Petition for Review (PFR) File, Tab 1. Subsequently, we issued a show cause order requesting that the parties provide evidence and argument as to whether the appellant waived his military retired pay and made the required deposit in order to receive credit for his military service for purposes of computing his FERS annuity. PFR File, T ab 4 at 2. We also stated in the order that, depending upon the information provided, it is possible that the appellant may be entitled to a hearing on the issue of whether he waived his military retired pay and made the required deposit. Id. ¶6 In its re sponse , OPM states that the appellant paid the required deposit for his military service and waived his military retired pay, effective November 30, 2014 , but that he revo ked his waiver on August 18, 2015 . PFR File, Tab 5 at 4 -5, 8, 10-11. OPM’s response also include s evidence of the deposit, waiver, and revocation. Id. at 8, 10 -11. OPM request s that w e affirm the initial decision and remand the case for computation of the appellant’s annuity . Id. at 5. The appellant agree s that he made the required deposit. PFR File, Tab 6 at 2. 4 However, he argues that he was exempt from signing a waiver because he was receiving CRSC benefits . Id. Nevertheless, he states that his CRSC payment s are paid in lieu of retired pay from the US AF. Id. He also requests a hearing if the Board finds that one is warranted . Id. DISCUSSION OF ARGUME NTS ON REVIEW ¶7 The appellant reasserts that his injuries were related to combat and that, after he developed his injuries, his military retired pay was c onverted to payments on the basis of his injuries.2 PFR File, Tab 1 at 2. He also voices his concern about a deposit for his military service, although he has not pointed to a specific argument regarding this issue. Id. at 1. ¶8 An appellant bears the bu rden of provin g his entitlement to retirement benefits by preponderant evidence. See Cheeseman v. Office of Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56 (b)(2)(ii). Generally, an annuitant who performed military service after December 31, 1956 , must meet the following requirements before his sep aration from civilian service to receive credit for his military service in his FERS annuity : (1) waive his military retired pay; and (2) make a deposit for each period of military service perfor med after December 31, 1956. 5 U.S.C. 2 The appellant asserts that the administrative judge cited case law that is inapplicable to his appeal, that he never had the opportunity to discuss “USC Title 5 Section 1144,” and that OPM and the administrative jud ge cited a “DA Form 99,” but he can not find such a form. PFR File, Tab 1 at 1 -2. He has not identified , and we have not found any incorrect case s cited by the administrative judge. Further, his argument does not refer to any identifiable statutes. We also have considered the appellant’s argument regarding the form, which OPM and the administrative judge cited in the context of listing the appellant’ s in adequate documentation. ID at 5 -6; IAF, Tab 10 at 4. However, we find that any possible improper citation is not prejudicial in that it does not alter the finding that the appellant failed to provide the required documentation in support of his claim tha t he retired because of a service -connected disability. Accordingly, we find that the appellant’s arguments provide no basis for disturbing the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error tha t is not prejudicial to a party’ s substantive rights provides no basis for revers ing an initial decision). 5 §§ 8411 (c), 8422(e); see Barth v. Office of Personnel Management , 116 M.S.P.R. 123, ¶ 11 (2011) ; 5 C.F.R. § 842.306 . However, t here is a limited exception to the waiver requirement if an annuitant’s retired pay is “ based on a service -connected disability” that was “incurred in combat with an enemy of the United States, ” or “caused by an instrumentality of war and incurred in line of duty during a period of war [.]” 5 U.S.C. § 8411 (c)(2)(A) (emphasis added); see Barth , 116 M.S.P.R. 123 , ¶¶ 9, 11. ¶9 It is undisputed that the appellant is entitled to receive a FERS annuity by virtue of his service with the USPS from March 16, 1996 , until he retired on November 30, 2014 , and that he also was entitled to receive military retire d pay by virtue of his 21 years, 7 months, and 15 days of military service . IAF, Tab 10 at 4-9, 23. However, the evidence of record does not support a finding that the appellant is entitled to receive credit for his military service within his FERS annuity without waiving his military retire d pay. ¶10 The December 2015 l etter regarding the appellant’s CRSC claim state s that he had a combat -related disease that was caused by his exposure to Agent Orange . Id. at 26. However, the letter d oes not indicate that the appellant’s retirement was based upon that disease . Id. Additionally, the appellant’s Certificate of Release or Discharge from Active Duty , which is commonly known as a DD -214 form , reflects that he separated from the military on the basis of his years o f servic e. Id. at 35. Also , the letter from the USAF app roving the appellant’s CRSC claim notes that he was diagnosed with his service -connected disabilitie s beginning in the 2000s, which was after he retired from the USAF. Id. at 14 -15. The appellant also described these diagnoses as beginning after h e retire d from the USAF . IAF, Tab 1 at 2 . Accordingly , we agree with the administrative judge that the appellant has not demonstrated that he retired due to his combat -related injuries. ID at 4 -7. Thus, we find that the appellant was not entitled to cre dit for his military service on the basis of the exception for annuitants w ho retired because of a service -connected disability . See Patillo v. Office of Personnel 6 Management , 40 M.S.P.R. 452 , 455 -56 (1989) (finding that the appellant failed to demonstrate that his military retired pay was awarded under 5 U.S.C. § 8332 (c)(2), w hich is identica l to the statute at issue here) ; cf. Barth , 116 M.S.P.R. 123 , ¶ 11 (finding that the appellant was not required to waive his military retired pay aw arded on the basis of a service -connected disability to receive credit for the period of military service in his FERS annuity). We thus affirm the administrative judge’s conclusion that the appellant was not entitled to credit for his military service for purposes of computing his FERS annuity on the basis of a service -connected disability . ¶11 Nevertheless, we agree with the administrative judge that the appeal must be remanded to OPM to properly comput e the appellant’s an nuity. It is undisputed that the appellant made a deposit of $16,569.56 to receive credit for his military service in his FERS annuity. PFR File, Tab 5 at 11, Tab 6 at 2. OPM also has submitted a copy of the waiver signed by the appellant on April 21, 2015, in which he indicated that he was waiving his right to military retired pay for civil service retirement purposes, effective November 30, 2014.3 PFR File, Tab 5 at 10. Thus, the evidence appears to show that the appellant originally satisfied the req uirements for receiving credit in his FERS annuity for his military service. 5 U.S.C. §§ 8411 (c), 8422(e); see Barth , 116 M.S.P.R. 123 , ¶ 11; 5 C.F.R. § 842.306 . However, OPM also has included the appellant’s request to withdraw his waiver of military retired pay, which he submitted prior to OPM’s initial and reconsideration decisions . PFR File, Tab 5 at 8 -9; IAF, Tab 10 at 6 -8, 11-13. Under these circumstances, we find it appropri ate to remand the matter to OPM to determine whether the appellant properly rescinded his waiver and to recalculate his annuity accordingly. 3 The appel lant states that he “completed the necessary forms to combine [his] military service with OPM/FERS annuity.” PFR File, Tab 6 at 2. 7 ORDER ¶12 For the reasons discussed ab ove, we remand this case to OPM for further adjudication in accordance with this Remand Order. ¶13 On reman d, OPM shall review its records, explain whether the appellant properly rescinded his waiver of military retired pay for purposes of crediting his military service toward the FERS annuity, provide all pertinen t documentation, and recalculate the FERS annuity accordingly . OPM then must issue a new decision regarding the annuity re computation to the appellant and provide him with appeal rights. 5 C.F.R. § 831.110 . OPM must complete these actions no later than 90 days of the date of this O rder. ¶14 We ORDER OPM to inform the appellant in writing when it believes it has fully carried out all actions taken to comply with this Order and of the date on which it believes it has fully complied. We ORDER the appellant to provide all necessary information that OPM requests to carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. ¶15 No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the app ellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should c ontain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182 (a). FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LIBERTINY_GUIDO_C_DA_0841_16_0520_I_1_REMAND_ORDER_2004190.pdf	2023-02-21	null	DA-0841	NP
3,502	https://www.mspb.gov/decisions/nonprecedential/PARKER_CHAILLA_FLORENCE_R_PH_3443_20_0217_I_1_FINAL_ORDER_2004246.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FLORENCE R. PARKER C HAILLA, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER PH-3443 -20-0217 -I-1 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Florence R. Parker Chailla , Stroudsburg, Pennsylvania, pro se. Jonathan Andrew Gowen , Esquire, and Frederick Wu , Philadelphia , Pennsylvania , for the agency. BEFORE Cathy A. Harris , Vice Chair man Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal without prejudice to refiling . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 1 A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contra st, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS2 You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situatio n and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since th e issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Please read carefully each of the three main possible choices of review below t o decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule , an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 4 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you s ubmit 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 co mmercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistle blower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activ ities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statu tory provision that provided for judicial review of certain whistleblower claims by any court of 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 allo ws appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Ac t is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you subm it a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Cont act information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PARKER_CHAILLA_FLORENCE_R_PH_3443_20_0217_I_1_FINAL_ORDER_2004246.pdf	2023-02-21	null	PH-3443	NP
3,503	https://www.mspb.gov/decisions/nonprecedential/CLOUSE_JENNIFER_W_PH_0841_20_0146_I_2_FINAL_ORDER_2004252.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JENNIFER W. CLOUSE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and GRACIELA CLOUSE , Intervenor. DOCKET NUMBER PH-0841 -20-0146 -I-2 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles P. Lamasa , Esquire, 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, 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). 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) . For the reasons discussed below, we GRANT the a ppellant’s petition for review and VACATE the initial decision . We ORDER OPM to cancel its final decision establishing a 4 6-month repayment schedule and to pay the appellant the remaining benefits she is owed of the $18,789.60 underpayment that accrued between July 1, 2016 , and July 30, 2019. BACKGROUND ¶2 The facts in th is case are not dispute d. On May 8, 2001, the appellant , a former Federal employee , and her husband divorced. Clouse v. Office of Personnel Management , MSPB Docket No. PH -0841 -20-0146 -I-1, Initial Appeal File (IAF), Tab 9 at 14 -17. On June 30, 2016 , the appellant retired under the Federal Employee Retirement System (FE RS).2 Id. at 18, 25. As a condition of the divorce, the parties stipulated that “the parties’ Federal Employee Retirement Pensions ” would be split in half for all months of creditable ser vice during their marriage. Id. at 15. By court o rder, the Circuit Court for Baltimore County, Maryland directed OPM “to pay Former Spouse’s share directly to Former Spouse.” Id. at 10 (capitalization in original) . ¶3 However, OPM initially miscalculated the annuity payments to the appellant’s former spouse, resulting in an overpayment to the former spouse and an underpayment to the appellant. IAF, Tab 1 at 8-9. On or about May 2016, the appellant notified OPM of the error , and OPM ultimate ly agreed to take action in 2019. IAF, Tab 1 at 8, Tab 9 at 7. On January 1, 2020, OPM issued a final 2 In the initial decision, the administrative judge appears to erroneously identify the appellant’s retirement date as May 30, 2015 , and refers to the Civil Service Retirement System (CSRS) statutes and regulations as though the appellant were a CSRS annuitant . IAF, Tab 27, Initial Decision at 2, 5, 9 & n.3. However, the appella nt is a FERS annuitant . IAF , Tab 9 at 10, 18, 25 . 3 decision stating that the appellant had “been underpaid $18,789.60 from July 1, 2016 to July 30, 2019” and that the appellan t “will receive this amount, in 98 monthly installments of $190.00 with a final installment of $169.60. ” IAF, Tab 1 at 9-10. OPM reasoned that it would refund the underpayment according to the same schedule it used to collect its corresponding overpayment to the appellant’s former spouse. Clouse v. Office of Personnel Management , MSP B Docket No. PH-0841 -20-0146 -I-2, Appeal File (I -2 AF ), Tab 24 at 4. ¶4 The appellant filed a Board app eal challenging OPM’s January 1, 2020 decision. IAF, Tab 1 at 5, 9 -10. On May 8, 2021 , while the a ppeal was pending before the administrative judge, OPM issued an amended award letter notifying the appellant that her “former spouse ha[d] agreed to increase [the appellant’s] monthly reimbursement payments” and that she “will receive the remaining balanc e of $14,539.60 in 45 monthly installments of $320.00 with a final installment of $139.60.” I -2 AF, Tab 16 at 4-5. ¶5 After holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming OPM’s final decision to pay the appellant the underpayment in 45 monthly installments and one final installment . IAF, Tab 1 at 2; I-2 AF, Tab 20, Tab 27, Initial Decision (ID) at 2, 10 . In so finding, the administrative judge declined to frame the issue as one of harmful err or by OPM. ID at 7. Instead, he found, in essence , that the Board lacks jurisdiction over the repayment schedule because “there is no OPM rule or regulation which would authorize OPM to pay the appellant the money she is owed in a single lump -sum payment .” ID at 9. The administrative judge also found premature the appellant’s argument that OPM may not refund her in full if the appellant’s former spouse were to pass away before all the payments were made. ID at 9 -10. He suggested that if that eventuall y occurs , the Board might then have jurisdiction over OPM’s refusal to pay any remaining amount due . ID at 10. ¶6 The appellant has filed a petition for review of the initial decision. Clouse v. Office of Personnel Management , MSPB Docket No. PH -0841 -20-0146 -I-2, 4 Petition for Review (PFR) File, Tab 1. She argues that the Board has jurisdiction over all of the claims raised in her appeal regardless of the lack of any specific OPM rule or regulation on underpayments because it involves OPM’s implementation of a court order affecting her rights and interests under Federal retirement laws. Id. at 5 -7, 9-10. She asserts that because the Board has jurisdiction over her appeal , it also has jurisdiction to rule on her affirmative defense of harmful error. Id. at 7-9. Lastly, she argues that the administrative judge erred in finding that the appellant’s claim that her former spouse may die before she is fully reimbursed was premature and that waiting to adjudicate that issue is not in the interest of justice. Id. at 11-12. The agency has submitted a nonsubstantive response to the petition for review. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶7 The parties here do not dispute the existence or the amount of the appellant’s underpayment. IAF, Tab 1 at 8; I -2 AF, Tab 24 at 5 . OPM also concedes that the court order ordering apportionment of the appellant’s retirement annuity between her and her former spouse was clear, specific, and acceptable for processing and, therefore, OPM was responsible for implementing it , pursuant to 5 C.F.R. § 838.121 . I-2 AF, Tab 24 at 5. Thus , the central issue in this appeal is whether the Board has the authority to order OPM to adjust its payment schedule . PFR File, Tab 1 at 5 -6, 12. We find that it does . The administrative judge erred in determining that the Board does not have jurisdiction over the appellant’s possible entitlement to an adjustment of the repayment schedu le. ¶8 On review, the appellant challenges the administrative judge’s finding that the Board lacks jurisdiction over the appellant’s repayment schedule. ID at 7 -9; PFR File. Tab 1 at 5 -7. The administrative judge below found that OPM’s statutes and regulat ions do not pro vide a payment scheme for the payment of arrearages owed to the appellant, nor specifically allow a lump sum payment of the amount she is owed. ID at 9 & n.3 . He explained that although OPM has 5 regulations concern ing debts owed to the Civi l Service Retirement and Disability Fund, no such regulations exist regarding underpayments owed to retirees or annuitants from the Fund; therefore, the Board lacks jurisdiction to order OPM to alter its current payment schedule . Id. We know of no statut ory or regulatory provision specifically addressing the auth ority of the Board to review an adjustment of a repayment schedule based on a debt OPM owes to the annuitant. Nevertheless, we disagree with the administrative judge and find that the Board has jurisdiction over this appeal pursuant to 5 U.S.C. § 8461 (e)(1). ¶9 Under 5 U.S.C. § 8461 (e)(1), the Boa rd has jurisdiction to review “ an administrative action or order affecting the rights or interests of an individual” under FERS .3 Eller v. Office of Personnel Management , 121 M.S.P.R. 551, ¶ 8 (2014). OPM is statutorily mandated to take such administrative actions, and “shall pay all [FERS] benefits” from the Civil Service Retirement and Disability Fund. 5 U.S.C. §§ 8401 (6), 8461(a) -(d). Prior to retirement, FERS -covered employees contribute to the Fun d through salary deductions . 5 C.F.R. § 841.504 (b), (h). OPM’s duties include paying the basic annuity of an eligible retiree. 5 U.S.C. §§ 8412 , 8461(a). OPM is also required to pay benefits to a former spouse of an annuitant pursuant to a qualifying c ourt order incident to a divorce decree . 5 U.S.C. § 8467 (a)(1). ¶10 There is no dispute that the appellant was entitled to a basic FERS annuity beginning July 1, 2016. IAF, Tab 9 at 18-21, 25. Here, OPM’s underpayment to 3 We find that the administrative judge’s reliance on the CSRS statutes and regulations, as opposed to FERS, in analyzing the appellant’s disability retirement appeal does not affect the outcome of the appeal, as the statutes, regulations, and case law generally are parallel. Compare 5 U.S.C. § 8347 (d) (con taining the statutory provision regarding Board jurisdiction over CSRS appeals ), with 5 U.S.C. § 8461 (e) (containing the similar FERS provision ); see James v. Of fice of Personnel Management , 72 M.S.P.R. 211 , 216 n.3 (1996) (observing that the Board may rely on case law developed under the CSRS in deciding FERS overpayment appeals because the relevant regulations generally are parallel); Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 6 the appellant and overpayment to her former spouse resulted from OPM’s error in calculating the apportionment of the appellant’s retirement annuity pursuant to a court order that was incident to their divorce decree . IAF, Tab 1 at 9-10, Tab 9 at 15. Thus, OPM’s action affect ed the appellant’ s rights and inte rests under FERS and is subject to the Board’s jurisdiction. See Miller v. Office of Personnel Management , 99 M.S.P.R. 104, ¶¶ 8 -12 (2005) (finding that a FERS annuity overpayment that resulted, not from anything related to t he computation of an appellant’ s retirement annuity, but rather from a change in her life insurance coverage, was not an administrative action that could be appealed to the Board under 5 U.S.C. § 8361 (e)(1)), aff’d , 449 F.3d 1374 (Fed. Cir. 2006) . ¶11 Moreover, the Board has held that, if an appellant is continuing to receive CSRS or FERS annuity benefits , a red uction in that annuity to recover an overpayment would also affect her rights and interests under the CSRS or FERS , and the adjustment of the repayment schedule would be within the Board’ s jurisdiction. 5 U.S.C. §§ 8347 (d)(1), 8461(e)(1); see Martin v. Office of Personnel Management , 119 M.S.P.R. 188 , ¶ 9 n.4 (2013); Alexander v. Office of Personnel Management , 114 M.S.P.R. 122 , ¶¶ 9 -12 (2010) (explaining that under 5 U.S.C. § 8347 (d)(1), regarding the Board’s juri sdiction over CSRS matters, the Board lacks authority to adjust a repayment schedule in the absence of a CSRS annuity or other administrative payment) ;4 5 C.F.R. § 845.206 (providing that administrative offset may be made from lump sum or annuity payments , payments made to the debtor by another agency , or Federal salary ). Here , the appellant is currently receiving an annuity from OPM and s eeks to adjust OPM’s 46-month payment schedule fo r annuity payments owed her to one lump sum payment. PFR File, Tab 1 at 12. Therefore, her challenge to OPM’s payment schedule affecting her annuity is within the Board’s jurisdiction. 4 Because the “rights or interests” language of 5 U.S.C. § 8347 (d)(1), under CSRS, is identical to the language in 5 U.S.C. § 8461 (e)(1), under FERS, we find the reasoning in Alexander is applicable to cases arising unde r FERS. 7 OPM’s final decision must be canceled , and the appellant must be restored to the status quo ante. ¶12 OPM has conceded that the appellant was underpaid $18,789.60 in annuity benefits to which she is entitled. IAF, Tab 1 at 9 -10. Therefore, because we have found that we have jurisdiction over the appeal and OPM has conceded its liability, we order OPM to cancel its final decision and return the appellant to status quo ante. ¶13 The Board’s enforcement authority includes the power to r estore an appellant , as nearly as possible, to the status quo ante. Kerr v. National Endowment for the Arts , 726 F.2d 730 , 733 (Fed. Cir. 1984). In Kerr the U.S. Court of Appeals for the Federal Circuit explained that “the Supreme Court long ago stated that, ” “the general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury . . . . The injured party is to be placed, as near as may be, in the situation [she] would have occupied if the wrong had not been committed.” Id. at 733 n.3 (quoting Wicker v. Hoppock , 73 U.S. 94 , 99 (1867)). Therefore, when the Board orders OPM’s final decision canceled, as we do here, complete rescission of the action and a return to status quo ante requires OPM to refund money that had previously been withheld to the appellant if she has an interest in it under FERS . See Campbell v. Office of Personnel Management , 123 M.S.P.R. 2 40, ¶¶ 2-4, 10-11 (2016) (finding that a retirement appeal was not moot when OPM claimed that it rescinded its final decision but failed to pay to the deceased annuitant’s beneficiaries the amount it had previously withheld from the decedent ). Thus, we order OPM to pay the appellant the r emaining benefits she is owed from the original $18,789.60 underpayment from July 1, 2016 , to July 30, 2019 .5 5 Because we are ordering OPM to cancel its final decision and pay the appellant the remaining benefits she is owed, we need not reach her remaining argument s on review regarding OPM exercising its statutory power to enact regulations regarding repayment of debts it owes to annuitant s and alleged harmful error. We also find it unnecessary to 8 ORDER ¶14 We ORDER OPM to cancel its final decision establishing a 4 6-month repayment schedule and pay the appellant the r emaining benefits she is owed from the $18,789.60 underpayment from July 1, 2016 , to July 30, 2019 . OPM must complete this ac tion no later than 20 days after the date of this decision. ¶15 We further ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appel lant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶16 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office tha t issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons wh y the appellant believes that OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM . 5 C.F.R. § 1201.182 (a). ¶17 This is t he final decision of the Merit Systems Protection Board in this appeal. 5 C.F.R. § 1201.113 (c). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may b e 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 (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b); or 38 U.S.C. § 4324 (c)(4). The regulations may be found at 5 C.F.R. address the appellant’s argument that the administrative judge erred in finding that issues tied to the future death of her former spouse were premature. 9 §§ 1201.201 , 1202.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS6 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). 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 noti ce, 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 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 t his 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 ca n be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request rev iew by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Off ice of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office o f Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have rai sed claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 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 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 f or review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securin g pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Cir cuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before th e 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	CLOUSE_JENNIFER_W_PH_0841_20_0146_I_2_FINAL_ORDER_2004252.pdf	2023-02-21	null	PH-0841	NP
3,504	https://www.mspb.gov/decisions/nonprecedential/MCCAMAN_KIMBERLY_DC_1221_16_0494_W_1_FINAL_ORDER_2004258.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KIMBERLY MCCAMAN, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-1221 -16-0494 -W-1 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kimberly McCaman , Fredericksburg, Virginia, pro se. Jason B. Myers , Esquire, Washington , D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction . For the following reasons, we GRANT the petition for review and AFFIRM the initial decision AS MOD IFIED, still DISMISSING the 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The appellant filed a complaint with the Office of Special Counsel (OSC) alleging that, in retaliation for reporting on October 2, 2014, that classified information was not being app ropriately stored, the agency subjected her to a hostile work environment, forced her to take extensive leave, issued a negative annual appraisal, reassigned her to a different work location , issued two letters of counseling, and “stripped” her of her security clearance . Initial Appeal File (IAF), Tab 1 at 8 -9. OSC closed its inquiry into he r complaint and advised her of her right to seek corrective action from the Board. Id. at 8. ¶3 The appellant filed this timely IRA appeal. IAF, Tab 1. The adminis trative judge issued an acknowledgment order and an order to show cause, notifying the appellant of her burden to nonfrivolously allege jurisdiction over her appea l and providing her with an opportunity to respond. IAF, Tabs 2, 15 . The appellant submitte d a response detailing her alleged disclosures and the personnel actions that allegedly resulted . IAF, Tab 18, Tab 19, Initial Decision (ID) at 1 -3. Among other things , she alleged that she disclosed that management officials were permitting employees to store and dispose of classified information at her workstation over her objections and in violation of Army Regulation (AR) 380-5.2 IAF, Tab 1 at 2-3, Tab 18 at 4-5. The appellant did not provide copies of her OSC complaint or correspondence, despite bein g notified of her obligation to prove exhaustion. IAF, Tab 15 at 1-2, Tab 18. ¶4 The administrative judge issued an initial decision that dismissed the appeal for lack of jurisdiction without holding the appellant’s requested hearing . IAF, Tab 5 at 4 ; ID at 1, 7 . He found that he could not determine which disclosures 2 AR 380 -5, Army Information Security Program, the current version of which was effective March 25, 2022 , develops the Army’s policy for the “classification, downgrading, declassification, transmiss ion, transportation, and safeguarding of information requiring protection in the interest of national security.” See https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN31725 -AR_380 -5-000-WEB - 1.pdf (last visited February 17, 2023 ). 3 the appellant exhausted because she did not specify what she raised to OSC , and OSC’s close -out letters only vaguely referenced her disclosures . ID at 5 -6. He therefore found that the a ppellant failed to prove that she exhaust ed her administrative remedies with OSC before filing her IRA appeal. ID at 6. He a lso found that the Board lac ks jurisdiction over the appellant’s allegation that her security clearance was revoked and over her d iscrimination claims. ID at 6 -7. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has submitted a response, to which the appellant has replied. PFR File, Tabs 3 -4. ANALYSIS ¶6 The appellant challenges the ad ministrative judge’s finding that the documents she provided below were insufficient to prove that she exhausted her administrative remedies with OSC . PFR File, Tab 1 at 4 , Tab 4 at 2 . We agree. ¶7 Under 5 U.S.C. § 1214 (a)(3), administrative remedies must be exhausted by seeking corrective action from OSC before seeking corrective action from the Board. The substantive requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The purpose of the exhaustion requirement is to give OSC the opportunity to take corrective action before involving the Board in the case. Id. Thus, Board jurisdiction in an IRA appeal is limited to those issues that have been raised with OSC. Id. An appellant, however, may give a more detailed account of the whistleblowing or protected activit y before the Board than was given to OSC. Id. ¶8 An appellant may demonstrate exhaustion through an initial OSC complaint or corresponden ce with OSC. Chambers , 2022 MSPB 8 , ¶ 11. Exhaustion may also be proved through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts 4 in the Board appeal. Id. The appellant must prove exhaustion with OSC by preponderant evidence, not just nonfrivolous allegations. Id. ¶9 The correspondence OSC sent to the appellant closing its file and informing her of her right to seek corrective action with the Board is sufficiently reliable evidence establish ing that the appellant raised before OSC her October 2, 2014 disclosure regarding the improper storage of classified material and the various personnel actions set forth above that she claimed were taken in reprisal for that disclosure. She therefore gave OSC a sufficient basis to pursue an investigation of those claims. Any failure by the appella nt to submit to the Board her OSC complaint or other correspondence she sent to OSC does not detract from the evidence showing that she gave OSC a sufficient basis to pursue an investigation. The fact that she gave a more detailed account of her claims be fore the Board does not mean that she did not exhaust her remedy with OSC. See Briley v. National Archives and Records Administration , 236 F.3 d 1373 , 1378 (Fed. Cir. 2001 ) (holding that, when the appellant exhausted with OSC “the core” of her retaliation claim, she exhausted her remedies before OSC notwithstanding her more detailed account of those activities before the Board).3 ¶10 If an appellant h as exhausted her administrative remedies before OSC, she can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging 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)(2)(A). Chambers , 2022 MSPB 8 , ¶ 14. To satisfy the 3 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 is sues. 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). We find the Briley decision persuasive under the circumstances of this case. 5 contributing factor criterion at the jurisdictional stage, an appellant need only raise a nonfrivolous allegatio n that the fact of, or content o f, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Id. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure or activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or activ ity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Id., ¶ 15. If an appellant fails to satisfy the knowledge/ timing test, the Board must consider other evidence, such as that pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding official, and whether those individuals had a desire or motive to retaliate against the appellant. Id. ¶11 Here, we find that the appellant made a nonfrivolous allegation that she reasonably believed her disclosure regarding the storage of classified information evidenced a viol ation of law, rule, or regulation. Nevertheless, a review of her pleadings does not establish that she made a nonfrivolous allegation that her disclosure was a contributing factor in any of the alleged personnel actions. IAF, Tab 1 at 2-7, Tab 18 a t 1-13. In this regard, she has not made a nonfrivolous allegation that any of the officials with knowledge of her disclosure took or influenced the taking of the alleged personnel actions. Although some of the appellant’s filings relating to an equal em ployment opportunity (EEO) complaint suggest that one of the individuals to whom she made her disclosure played a part in her letters of counseling, IAF, Tab 6 at 35, 39 -40, the Board has held that a letter of counseling generally is not a personnel action , see Special Counsel v. Spears , 75 M.S.P.R. 639 , 670 (1997); see also Mohammed v. Department of the 6 Army , 780 F. App’x 870, 875-76 (Fed. Cir. 2019) .4 We further find that the appellant ’s pleadings do not establish a nonfrivolous allegation that she met the contributing factor element through other evidence, such as the strength or weakness of the reasons for the actions, whet her the disclosure was personally directed at the acting officials, and whether those officials had a desire or motive to retaliate. ¶12 The appellant alleges that the administrative judge failed t o make special accommodations for her as a pro se litigant , rejected documents pertinent to her case, and erred by making findings concerning her security clearance revocation . PFR File, Tab 1 at 4. We find that the se arguments provide no basis for finding that the Board has jurisdiction over this appeal.5 See Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586 , ¶ 17 (2009) (holding that an administrative judge must identify all ma terial issues of fact and law, summarize the evidence, resolve issues of credibility, and include his conclusions of law and legal reasoning); 5 C.F.R. § 1201.111 (b)(1) -(2). ¶13 Accordingly, we deny the petition for review and affirm, as modified, the initial decision dismissing the appellant’s IRA appeal for lack of jurisdiction. 4 The Board may rely on unpublished decisions of the Federal Circuit if it finds the court ’s reasoning persuasive, as we do here. See Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 , ¶ 12 (2011). 5 The appellant also alleged that she filed an EEO complaint because she was being discriminated against . IAF, Tab 1 at 3-6. The Board lacks the authority to decide the merits of her allegations of prohibited discrimination, as those underlying personnel actions do not provide an independent basis for Board jurisdiction. See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding tha t prohibited personnel practices are not independent sources of Board jurisdiction), aff’d , 681 F.2d 867 , 871 - 73 (D.C. Cir. 1982) . Furthermore, the Whistleblower Protection Enhancement Act of 2012 did not extend the Board’s jurisdiction over IRA appeals to an employee’s own EEO complaints if, as here, she did not allege reprisal for whistleblowing in the EEO process . Mudd v. Department of Veteran s Affairs , 120 M.S.P.R. 365, ¶ 7 (2013 ); PFR File, Tab 1 at 4; IAF, Tab 18 at 4 . Thus, we discern no error with the administrative judge ’s finding that the Board lacks jurisdiction over these claims . ID at 7. 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 stat ute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of avail able 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 withi n their jurisdiction. If you wish to seek 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 re sult in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the app ropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 has updated the notice of review rights included in final decisions. As indicated in the notice, the Boar d 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 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 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 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 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 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 Ci rcuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective 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	MCCAMAN_KIMBERLY_DC_1221_16_0494_W_1_FINAL_ORDER_2004258.pdf	2023-02-21	null	DC-1221	NP
3,505	https://www.mspb.gov/decisions/nonprecedential/BLACK_DANIEL_R_SF_0752_15_0642_I_1_FINAL_ORDER_2004262.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DANIEL R. BLACK, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER SF-0752 -15-0642 -I-1 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Arlene Black , Newbury Park, California, for the appellant. Karen D. Glasgow , Esquire, San Francisco, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action . For the reasons set forth below, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c). 2 GRANT the petition for review, REOPEN the appeal under 5 C.F.R. § 1201.118 ,2 VACATE the initial decision, and DISMISS the appeal as settled . BACKGROUND ¶2 The appellant was employed as a GL -09 Park Ranger at Channel Island s National Park in California . Initial Appeal File (IAF), Tab 1 at 1; Tab 13, Subtab 4K. Effective May 27, 2015 , the agency removed him based on a charge of inability to meet a condition of his employment: failure to main tain his law enforcement commission . IAF, Tab 4, Subtab 4A; Tab 1 3, Subtab 4K . Thereafter, the appellant filed an appeal with the Board challen ging his removal. IAF, Tab 1 at 1. On December 14, 2015 , the administrative judge issued an initial decision affirming the appellant ’s removal . IAF, Tab 30 , Initial Decision (ID). The initial decision stated that it would become final on January 18, 2016, unless a petition for review was filed by that date. ID at 23. ¶3 On April 30, 2018, the parties reached a fu lly executed settlement agreement during the processing of the appellant’s Equal Employment Opportunity (EEO) complaint . Petition for Review (PFR) File, Tab 1 at 47 -53.3 On May 17, 2018 , the appellant filed a petition for review .4 PFR File, Tab 1. On 2 Under 5 C.F.R. § 1201.118 , the Board has discretionary authority to reopen an appeal in which an initial decision has become the Board’s final decision by operation of law. In determining whether to reopen a decision, the Board balances the desirability of finality with the publi c interest in achieving the right result. Pierce v. Department of the Interior , 104 M.S.P.R. 267 , ¶ 3 (2006). We fi nd that, under the circumstances in this case, reopening of the appeal is appropriate . See id ., ¶¶ 1-3 (reopening an appeal when the parties reached a settlement agreement on the underlying merits of the appeal). 3 The appellant previously filed a formal EEO complaint, dated January 30, 2015, regarding the revocation of his law enforcement commission. PFR File, Tab 1 at 12 -15. In an Order and Summary of Telephonic Prehearing Conference in his Board appeal , the administrative judge clarified that the appe llant did not amend his EEO complaint to include his removal. IAF, Tab 21 at 4 n.1. 4 The Office of the Clerk of the Board advised the appellant that his petition for review appeared to be untimely filed and invited him to file a motion to accept the fil ing as timely or to waive the time limit for good cause. PFR File, Tab 2. The appellant 3 review , the appellant moved to vacate the initial decision based on the April 30, 2018 settlement agreement, and he attach ed a copy of th e settlement agreement to his petition .5 Id. at 3-9, 47-53. The agency has not filed a response to the appellant’s petition for review . DISCUSSION OF ARGUMENTS ON REVIEW ¶4 A settlement agreement is a contract, the interpretation of which is a matter of law. Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988). The words of the agreement are of paramount importance in determining the parties’ intent when they contracted . Id. It is well settled that the Board may review a settlement agreement reache d outside of a Board proceeding to determine its effect on a Board appeal and any waiver of Board appeal rights .6 E.g., Swidecki v. U.S. Postal Service , 101 M.S.P.R. 110 , ¶ 7 (2006); see Lee v. U.S. Postal Service , 111 M.S.P.R. 551 , ¶ 4 (2009) , aff’d , 367 F. App’x 137 (Fed. Cir. 2010) . subsequently moved to waive the time limit, alleging that he filed his petition for review in a timely manner following the execution of the settlement agreement. PF R File, Tab 3. In light of our decision to reopen the appeal and dismiss it as settled, we need not address the timeliness of the appellant’s petition for review. 5 The appellant has also attached to his petition for review numerous other documents, most of which appear to relate to the merits of his removal appeal and EEO complaint. PFR File, Tab 1 at 12 -45, 54 -147. Because this appeal has been settled, these documents are not material to the outcome of the appeal; thus, we need not consider them . See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absen t a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision); cf. Lee v. U.S. Postal Service , 111 M.S.P.R. 551 , ¶ 10 (2009) (declining to reach the other issues raised by the appellant on petition for review whe n the appeal was dismissed as settled) , aff’d , 367 F. App’x 137 (Fed. Cir. 2010) . 6 The Board, however, lacks the authority to enfo rce a settlement agreement that was reached in another forum. Lee, 111 M.S.P.R. 551 , ¶ 4 n.2; Johnson v. U.S. Postal Service , 108 M.S.P.R. 502 , ¶ 8 n.5 (2008), aff’d , 315 F. App’x 274 (Fed. Cir. 2009). 4 ¶5 We find that, here, the April 30, 2018 settlement agreement encompassed the matters in the appellant’s Board appeal. In particular, the settlement agreement’s explicit terms stated, inter alia, as follows: In exchange for the valuable consideration provided to and acknowledged by the Complainant and described fully in this Settlement Agreement, Complainant voluntarily agrees for himself and his heirs , executors, administrators, representatives (legal and personal) and assigns, to fully and forever release and discharge the Agency . . . from any and all matters, issues, complaints, claims, actions, grievances, demands, damages, expenses, and liabiliti es of every kind or nature whatsoever, that Complainant has raised, could have raised, or contemplated raising, arising directly or indirectly from an y acts, omissions, incidents, or circumstances arising out of or relating to Complainant’s employment with the Agency, up to and includ ing the effective date of this Settlement A greement. PFR File, Tab 1 at 48. The appellant’s removal was a claim that arose from his employment with the agency before the settlement agreement was executed. Therefore, we find that the plain meaning of the settlement agreement’s terms included the appellant’s appeal. See Lee , 111 M.S.P.R. 551 , ¶ 7. Further, by agreeing to “fully and forever release” the agency from “all matters, issues, complaints, claims, actions, grievances, demands, damages, expenses, and liabilities of every kind or nature” before the April 2018 execution of the settlement agreem ent, the appellant waived his right to appeal his May 2015 removal to the Board. PFR File, Tab 1 at 48; see Lee , 111 M.S.P.R. 551 , ¶ 7 (finding that, pursuant to the settlement agreement’s release, the appellant waived his right to appeal his constructive suspension to the Board ). ¶6 We f urther find that the waiver of Board appeal rights is enforceable . A waiver of appeal rights in a settlement agreement is enforceable if its terms are comprehensive, freely made, and fair, and execution of the waiver did not result from agency duress or bad faith. Lee, 111 M.S.P.R. 551 , ¶ 4. Here, the settlement agreement provided that the parties voluntarily and knowingly entered into it, and the agreement was signed by both the appellant and his 5 representative . PFR File, Tab 1 at 47; see Lee, 111 M.S.P.R. 551 , ¶ 9 (noting that the fact that the settlement agreement was signed by the appellant and his representative was a significant factor in determining the validity of the settlement agreement). Accordingly, we find the release in the April 30, 2018 settlement agreement to be an enforceable waiver of the appellant’s Board appeal rights and, further, that the appellant understood the terms of the agreement. ¶7 In sum, we find that the settlement agreement reached in the processing of the appellant’s EEO proceeding encompassed the matters raised in the appellant’s Board appeal, that the appellant knowingly and voluntarily signed the settlement agreement, and that the appel lant waived his Board appeal rig hts in the settlement agreement .7 Accordingly, we vacate the initial decision and dismiss the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal). This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE OF APPEAL RIG HTS8 You may obtain revie w of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although 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 Because the settlement agreement provides for enforcement under the regulations of the Equal Employment Opportunity Commission, we do not enter the settlement agreement into the record for enforcement. PFR File, Tab 1 at 45. 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 to provide a comprehensive summary of all available review options. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims a nd carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court o f Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals 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 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discri mination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and you wish to challenge the Board’s rulings on your whistleblower claims only, excluding all other issues , then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your 9 The original statutory provi sion that provided for judicial review of certain whistleblower claims by any court of 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 appella nts to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retro active to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of A ppeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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	BLACK_DANIEL_R_SF_0752_15_0642_I_1_FINAL_ORDER_2004262.pdf	2023-02-21	null	SF-0752	NP
3,506	https://www.mspb.gov/decisions/nonprecedential/HANSON_JANIS_L_PH_0831_19_0446_I_1_REMAND_ORDER_2004311.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JANIS L. HANSON,1 Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER PH-0831 -19-0446 -I-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL2 Daniel Clark , Esquire, and Jeremy Wright , Esquire, Washington, D.C., for Kathleen Van Riper . Jo Bell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Vice Chairman Harris recused herself and did not participate in the adjudication of this appeal. 1 As explained herein, we grant the motion for substitution filed by the appellant’s widow, Kathleen Van Riper. 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cit e 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 REMAND ORDER ¶1 The appellant ’s widow, Kathleen Van Riper, has filed a motion for substitution with her timely filed petition for review of the December 18, 2020 initial decision, which dismissed for lack of a substitute this appeal of a final decision issued by the Office of Personnel Management (OPM) finding that the appellant had been overpaid in Civil Service Retirement System annuity benefits . For the reasons discussed below, we GRANT Ms. Van Riper’s motion for subst itution , VACATE the initial decision, and REMAND the case to the regional office for further processing. ¶2 Pursuant to 5 C.F.R. § 1201.35 (a), if an appellant dies during the pendency of her appeal, the processing of the appeal will only be completed upon the substitution of a proper party. See, e.g. , Estate of Kravitz v. Department of the Navy , 110 M.S.P.R. 97 , ¶ 2 n.1 (2008) (finding that substitution was proper whe n the appellant passed away while his appeal was pending and the appellant’s counsel submitted a motion for his widow to be a substitute party). The regulatory deadline to file a motion to substitute is 90 days after the death of an appellant , except for good cause shown . 5 C.F.R. § 1201.35 (b). Here, the appellant died on November 1, 2019, and Ms. Van Riper filed her motion for substitution on January 21, 2021 , with her petition for review . Petition for Review (PFR) File, Tab 1 at 2 -4, 16. Acc ordingly, Ms. Van Riper’s motion was untimely filed by approximately 1 year. ¶3 The appellant filed a timely appeal of OPM’s final decision on September 12, 2019. Initial Appeal File (IAF), Tab 1 at 1 -7, 24 -28. OPM informed the administrative judge of the appellant’s November 1, 2019 death on November 25, 2019 . IAF, Tab 5. On January 24, 2020, which was within the 90-day period for substitution of a proper party, the administrative judge assigned to the appeal suspended case processing for 30 days . IAF, Tab 6. That suspension of case processing was granted a second time from June 23 until July 23, 2020. IAF, Tab 7. On November 6, 2020, a different administrative 3 judge was assigned to the case. IAF, Tab 8. The new administrative judge issued a November 24, 2020 “Order Regarding Substit ution for Appellant ” that set December 8, 2020, as the deadline by which a motion for substitution must be filed . IAF, Tab 9. Ms. Van Riper submitted, w ith the petition for review and motion for substitut ion, a declaration under penalty of perjury indicating th at she never receive d the new administrative judge’s November 24, 2020 order . PFR File, Tab 1 at 4. ¶4 Under the above circumstances, including the death of the appellant, who was proceeding pro se at the tim e, the two case processing suspensions, the assignment of the case to a different administrative judge, who set a new deadline for filing a motion for substitution , thereby essentially waiv ing the 90-day deadline under 5 C.F.R. § 1201.35 (b), see 5 C.F.R. § 1201. 12 (permitting waiver of a Board regulation by an administrative judge ), and the statement made under penalty of perjury by Ms. Van Riper, see Conner v. Office of Personnel Management , 120 M.S.P.R. 670 , ¶ 13 (2014) (holding that a decl aration under penalty of perjury, if uncontested, prove s the facts it asserts), aff’d , 620 F. App’x 892 (Fed. Cir. 2015), along with the filing of the motion within 30 days of receipt of the initial decision, we find that g ood cause has been shown for the delay in filing the motion for substitut ion. ¶5 In any event , the Board has granted a proper party ’s untimely motion for substitution in unusual circumstances even absent a showing of good cause . See Carpio v. Office of Personnel Management , 94 M.S.P.R. 506 , ¶ 5 n.* (2003). The Board has clarified that this practice is consistent with 5 C.F.R. § 1201.35 (c), which allows the processing of an appeal to continue absent a timely substitution when the interests of the proper party , i.e., the estate of the appellant, would not be prejudiced. Id.; see also Stone v. Department of the Army , 37 M.S.P.R. 56 , 57 n.1 (1988) . Here, we find that such unique circumstances exist. Indeed , although the appellant passed away on November 1, 2019, an order regarding substitution was not issued until November 24, 2020, over 1 year later. IAF, Tab 5 at 3, Tab 9 4 at 1 -2. Moreover, the agency has not objected to Ms. Van Riper’s motion regarding substitution , and the Board has previously state d that, in annuity -related cases such as this one, the paramount concern is whether a party is entitled to the benefit she seeks. See, e.g., Moore -Meares v. Office of Personnel Management , 105 M.S.P.R. 613, ¶ 8 (2007). ORDER ¶6 Accordingly , we grant Ms. Van Riper’s motion for substitution and we remand this case to the regional office for further processing . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HANSON_JANIS_L_PH_0831_19_0446_I_1_REMAND_ORDER_2004311.pdf	2023-02-21	null	PH-0831	NP
3,507	https://www.mspb.gov/decisions/nonprecedential/MUHAMMAD_KHURSHID_KHAN_DE_1221_15_0371_W_2_REMAND_ORDER_2004361.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KHURSHID KHAN MUHAMM AD, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S DE-1221 -15-0371 -W-2 DE-1221 -16-0182 -W-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Khurshid Khan Muhammad , Artesia , California, pro se. Tanya Burton , Bay Pines, Florida , for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND 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 discussed below, we GRANT the ap pellant’s petition for review , AFFIRM the administrative judge’s findings denying 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 corrective action concerning the alleged termination of his appointment, denial of work, and termination of his clinical privileges, and REMAND the appeals to the Denver Fiel d Office for further adjudication regarding the appellant’s request for corrective action concerning the alleged threat to terminate his appointment . BACKGROUND ¶2 The appellant filed a timely IRA appeal alleging that the agency retaliated against him for p rotected whistleblowing disclosures by threatening to terminate and then terminating his appointment in November 2014. Muhammad v. Department of Veterans Affairs , MSPB Docket No. DE-1221 -15-0371 -W-1, Initial Appeal File ( 0371 IAF), Tab 1. The appellant later filed a second IRA appeal alleging that the agency retaliated against him for protected whistleblowing disclosures when it terminated his clinical privileges and refused to assign him work. Muhammad v. Department of Veterans Affair s, MSPB Docket No. DE-1221 -16-0182 -W-1, Initial Appeal File ( 0182 IAF), Tab 1. The administrative judge joined the two appeals. Muhammad v. Department of Veterans Affairs , MSPB Docket No. DE-1221 -15-0371 -W-2, Refiled Appeal File (0371 RAF), Tab 3; 0182 IAF, Tab 7. ¶3 The first appeal arose from the appellant’s October 20, 2014 appointment as a Fee Basis Physician at the New Mexico Veterans Affairs Healthcare System in Albuquerque, New Mexico . 0371 IAF, Tab 1 at 11; 0371 RAF, Tab 43 at 4. The appointment covered the period from October 20, 2014, through September 30, 2015, and provided that the appellant would receive $80.00 per patient visit.2 2 Under 38 U.S.C. § 7405 (a)(2)(A), the agency is authorized to employ medical providers on a fee basis. See 38 U.S.C. § 7401 (1). The agency hires permanent, temporary, and “fee basis ” physicians. Hearing Compact Disc (testimony of Executive Director, Primary Care Operations). Permanent staff physicians may be either full -time or part -time. Id. Locum tenens physicians are salaried staff physicians hired under temporary appointments and deployed to sites where the agency needs additional physicians. Id. Fee B asis Physicians are also temporary appointees, but they receive a set fee per visit or procedure rather than a salary and benefits. Id. Fee Basis P hysicians 3 0371 RAF, Tab 43 at 4. The appointment letter listed a maximum utiliza tion limit of $300,000 per year b ut stated that neither the agency nor the appellant was obligated to reach that limit. Id. ¶4 Before any physician begins employment at an agency facility, the agency’s credentialing department must check his or her credentials and issue clinical privileges. Hearing Compact Disc (HCD) (testimony of credentialing Program Specialist ). The credentialing department is also responsible for terminating clinical privileges for physicians who no longer work at the facility. Id. When a physician departs the facilit y, the agency conducts an exit interview, in which it documents the reason for the departure. Id. If a physician has been terminated for cause, the agency may be required to report such information to the appropriate state licensing board. Id. ¶5 For pur poses of workload management, the agency typically assigns patients to panels. HCD (testimony of Ass ociate Chief of Staff ). Each panel is assigned to a physician, who serves as a point of contact for those patient s. Id. When a physician leaves the facility, his patients are assigned to another physician. Id. Thus, existing panels may be divided among multiple physicians. Id. Agency physicians assigned a panel of patients are responsible for handling “view alerts” for those patients. Id. View alerts are electronic notifications and report s on a wide variety of events, including test and laboratory results and prescription refill requests. Id. Some view alerts may be urgent and require immediate action. Id. ¶6 The ap pellant began seeing patients on October 27, 2014. 0182 IAF, Tab 5 at 33; 0371 RAF, Tab 48 at 9. At some point during his first week, the agency assigned him a panel of 1,195 patients. 0182 IAF, Tab 1 at 8; 0371 RAF, Tab 48 are not paid for any administrative time or for duties that do not involve patient visits or procedures . Id. 4 at 9. On November 4, 2014, t he Associate Chief of Staff for Ambulatory Care3 at the facility sent him the following email message: I am working on re -arranging and re -distributing the panel you are covering. Would you have any interest i [n] continuing to work [Monday -Friday] for a short period of time, until I can get this done? If not, let me know what your ideal schedule is. Thx. 0182 IAF, Tab 5 at 23. The appellant alleged that he spoke with the Associate Chief of Staff by telephone later that day, in which he raised a patient safety issue regarding the assigned patient panel and he refused to participate in the unsafe medical practice of treating patients without seeing them. 0182 IAF, Tab 1 at 5. He claimed that she became angry and threatened to terminate h is appointment. Id. at 5, 10 -11, 15, 23; 0371 IAF, Tab 1 at 5, 11, 13 -14; 0371 RAF, Tab 24 at 6. The appellant later sent an email me ssage responding to her earlier email , indicating that he was unable to work full -time because of personal an d family commitments. 0182 IAF, Tab 5 at 21-22. He offered to work 5 days per week on a temporary basis, but he enumerated several reasons why he should not be assigned a full panel of patients at that time. Id. ¶7 Specifically, the appellant explained t hat he did not want to receive a panel of patients because, given the temporary nature of his assignment, such patients would not have continuity of care. Id. at 21. He expressed concern that he would be “bombarded” with view alerts for patients he did not know and would not be able to see in the near future. Id. He also explained that any work he did involving patient s he had not seen would be unremunerated because he was only paid for actual patient visits. Id. at 21-22. Finally, he indicated that he was already spending more than the 30 minutes typically allotted for each patient because he was generally seeing “ older and very hi [gh] acuity patients that have not been seen for a while ” and suffered from multiple medical conditions. 3 The Associate Chief of Staff was in acting status when the eve nts in this appeal transpired. She was later appointed to the position on a permanent basis. HCD (testimony of Associate Chief of Staff). 5 Id. at 22. The appellant then presented five options that would allow him to provide services to the agency while maintaining what he believed to be an acceptable level of patient safety. Id. Only one of these options involved assigning him a panel of patients, and h e proposed that the panel be limited to 400 patients. Id. The appellant concluded, “If none of the above is workable then I am afraid I am unable to provide what you are expecting, ” in which case she could keep him on staff on an as needed basis for occa sional needs. Id. He said he could continue to work for the next few days or weeks as needed but patients should be “unassigned” unless he had seen them. Id. ¶8 The Associate Chief of Staff responded: “This is fine. I am working on reassigning the patients. I[f] you would consider working the rest of this week, I would appreciate it. I do have a part -time position in Gallup[, New Mexico ,] if you are interested.” Id. at 21. The appellant thanked her and indicated that he would work the rest of the week, but he reiterated that he was not interested in the position in Gallup because of the commuting distance. Id. at 20. He asked if she wanted to retain him as a fee basis provider on an as -needed basi s or if he would be terminated instead. Id. The Associate Chief of Staff responded: “Thank you for working the rest of the week. Will let you know about future needs.” Id. ¶9 The appellant continued to see patients through Friday, November 7, 2014. Id. at 35. On Sunday, November 9, 2014, he emailed the Associate Chief of Staff to thank her for expediting his hiring process and to apologize for not being able to “help out the situation exactly as you expected.” Id. at 26-27. He also stated that he ha d met another physician, who only came into the facility about once a month and saw only new patients. Id. at 27. He asked the Associate Chief of Staff whether a similar arrangement might be available to him. Id. She responded the next day: “I will le t you know if we need you. Thanks.” Id. at 26. Later that morning, an administrative officer assigned to the Associate Chief of Staff notified the facility credentialing office that the appellant’s credentials were 6 being terminated and that he would no longer b e working there as a Fee Basis Physician. Id. at 24. ¶10 On Tuesday, November 25, 2014, the appellant emailed the Associate Chief of Staff regarding his employment status. Id. at 31. In response, the Associate Chief of Staff told him she would “ check [with] credentials and . . . email you back with the start/stop dates for accuracy .” Id. at 30. After a brief exchange of messages, in which the appellant stated that he “was under the false impression of continued employment and privileges,” the Ass ociate Chief of Staff stated: You did not want the position offered and thus privileges were terminated. There was nothing adverse about it. Fee based providers are not the same as employees of the facility . . . . Privileges were terminated Nov 7 due to facility needs. . . . You[r] goals and [those] of the facility did not match. Id. at 29. On January 9, 2015, the Associate Chief of Staff completed a Provider Exit Review form for the appellant indicating that he had been cleared from the facility on November 7, 2014, because he had resigned. Id. at 25. The form stated that the appellant “[m]et general ly accepted standards of clinical practice, and there was no concern for the safety of patients.” Id. ¶11 In January 2015, the appellant filed a complaint with the Office of Special Counsel (OSC), OSC File No. MA-15-1650 , alleging that the agency retaliated against him for whistleb lowing. 0371 IAF, Tab 1 at 8-20. In that complaint, he alleged that the agency first threatened to terminate, then terminated , his employment and clinical privileges because he disclosed to the Associate Chief of Staff his safety a nd other concerns about having to handle a large number of view alerts for patients he had not yet seen in person. Id. at 11-18. After OSC informed him that it was closing its investigation into his complaint, he filed a Board appeal. Id. at 5, 20 -21. The administrative judge determined that the Board had jurisdiction over the IRA appeal and the appellant would be granted a hearing on the merits. 0371 IAF, Tab 7 at 2-3. During the processing of that appeal, however, the appellant learned that his appointment was still effective and 7 had not been terminated in November 2014. 0371 IAF, Tab 16 at 2; 0182 IAF, Tab 5 at 32. The administrative judge informed him that, if he wanted to raise a claim of whistleblower reprisal in connection with the agency’s ongoing decision not to assign him any work under an existing appointment and the apparent continued suspension of his hospital privileges, he would need to exhaust those claim s with OSC, as he had not done so in his existi ng OSC complaint. 0371 IAF, Tab 16 at 1-2, Tab 18. With the consent of both parties, the administrative judge dismissed the appeal without prejudice to refiling. 0371 IAF, Tab 21. ¶12 The appellant filed his second OSC complaint, OSC File No. MA-16-0722 , in November 2015. 0182 IAF, Tab 1 at 8-29. Therein, he alleged that the Associate Chief of Staff stopped assigning him work after he disclosed to her that she was forcing him to take clinical actions regarding patients he had not yet seen and would not be able to see in the future. Id. at 9-12, 15 -28. Such a practice, he alleged, was inherently unsafe and contrary to accepted standards of medical care. Id. at 10, 16. The appellant filed his second IRA appeal after OSC informed him that it was closing its investigation. Id. at 1-7, 29 -30. The administrative judge then joined the two pending IRA appeals for adjudication. 0371 RAF, Tab 3; 0182 IAF, Tab 7. ¶13 After a hearing, t he administrative judge iss ued an initial decision denying corrective action . 0371 RAF, Tab 61, Initial Decision (ID). The administrative judge found that the appellant made a protected disclosure when he disclosed to the Acting Associate Chief of Staff his belief that assigning him to a panel of over 1,000 patients would create a substantial and specific danger to public health and safety. ID at 11-13. The administrative judge found that, because the appellant’s appointment itself was not terminated, he failed to prove his reprisal claim for that particular alleged personnel action. ID at 13 n.6. Applying the knowledge/timing test to the agency’s decision to not assign h im additional work and to terminate his clinical privileges , howev er, the administrative judge found 8 that the appellant established that his disclosure was a contributing factor in th ose other personnel actions . ID at 13-14. The administrative judge nevertheless found that the agency proved by clear and convincing evid ence that it would have taken the same actions in the absence of his disclosure. ID at 14-20. The administrative judge thus denied his request for corrective action. ID at 21. ¶14 The appellant has filed a petition for review, primarily arguing that the administrative judge erred when deciding that the agency showed by clear and convincing evidence that it would have taken the same actions in the absence of any disclosure. Petition for Review (PFR) File, Tab 1 at 8-32. ANALYSIS The administrative judge properly denied corrective action concerning the appellant’s alleged termination, denial of additional work, and termination of clinical privileges. ¶15 On review, neither party has contested the administrative judge’s findings that the appellant established a prima facie case of reprisal for whistleblowing in connection with the decision to not assign him additional work and to terminate his clinical privileges. We find no reason to disturb the administrative judge’s findings on these issues. ID at 11-14.4 If an appellant meets his burden of proof to show retaliation for whistleblowing, the agency may still prevail if it shows by clear and convincing evidence that it would have taken the same personnel action or actions in the absence of any protected disc losure. Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 26 (2016). Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be estab lished. 5 C.F.R. § 1209.4 (e). In determining whether an agency has shown by clear and convincing evidence that it would have taken the personnel action in the absence of the protected activity, 4 Neither party contests the AJ’s finding that the agency did not terminate the appellant’s appointment in November 2014, and we find no reason to disturb it. ID at 13 n.6. 9 the Board will consider all of the relevant factors, including the following factors (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 similar actions agai nst employees who did not engage in such protected activity, but who are otherwise similarly situated. 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).5 The Board considers all the evidence, including evidence that detracts from the conclusion that the agency met its burden. Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012). ¶16 The administrative judge considered all three Carr factors, finding the agency’s evidence particularly compelling for the first two factors. ID at 14-20. Regarding the first Carr factor, the strength of the evidence in support of the agency’s actions, the administrative judge concluded that the Associate Chief of Staff and the appellant may not have had the same understanding regarding the nature of services the agency needed and the extent to which the appellant was willing and able to provide those services. ID at 14-15. Th e administrative judge based this assessment on the Associate Chief of Staff’s testimony that she declined to assign the appellant additional work and terminated his clinical privileges because she learned that he could not meet the agency’s requirement for a physician who coul d cover a panel of more than 1,000 patients on a temporary basis. ID at 15. 5 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these ty pes of whistleblower issues. However, pursuant to the All Circ uit Review Act , Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 10 ¶17 The administrative judge pointed out that the appellant’s appointment letter did not specify a particular schedule or require that he serve a minimum number of hours each week. ID at 14; 0371 RAF, Tab 43 at 4. Additionally, the administrative judge explained, the appellant was offered the appointment by the Associate Chief of Staff’s predecessor. ID at 14. The Associate Chief of Staff and another witness testified that her pr edecessor had hired the appellant on a full-time basis, but the appellant testified that he and the predecessor had agreed to a part -time schedule. ID at 14-15. The predecessor did not testify at the hearing. ID at 14 n.8. The administrative judge dete rmined that any unmemorialized discussions about part -time work that may have occurred between the predecessor and the appellant had not been communicated to the new Associate Chief of Staff, and she genuinely believed that the appellant had committed to a full-time schedule. ID at 15. Conversely, the administrative judge added, the predecessor may have simply believed that the appellant would cover an entire panel of patients as a part -time physician because he had been willing to work a “flexible” sched ule. ID at 15 n.9. In any event, the administrative judge concluded, the extent of the appellant’s commitment to provide coverage and the agency’s expectations were not documented in advance. Id. ¶18 Further, the administrative judge explained, the Associ ate Chief of Staff seemed reluctant to redistribute the patients from an existing panel because she believed a full -time physician would be available in the near future to cover the panel. ID at 15-16. The Associate Chief of Staff testified that the agen cy had recently hired a full -time staff physician to be assigned the panel, and the appellant was to have covered the panel temporarily while the agency resolved a credentialing delay for the new physician. Id. The administrative judge credited her testi mony that she weighed the added cost of employing the appellant as a part-time fee basis provider against the benefit that would accrue to the agency 11 from his services and concluded it was not cost-effective to employ him if she had to break up an existing panel to do so. ID at 16. ¶19 The administrative judge credited the Associate Chief of Staff’s testimony that she terminated the appellant’s clinical privileges because he would no longer be seeing patients and thus would not be subject to the monthly peer review process the agency used to reassess eligibility for privileges. Id. The administrative judge additionally credited her testimony that she did not assign the appellant work for the remainder of his appointment because she needed a full-time, rather than a part -time , physician. Id. Indeed, the administrative judge explained, the Associate Chief of Staff testified that she would have been willing to use the appellant on a full -time basis had he become available and, fu rther, it would not have been unusual for the agency to restore hi s clinical privileges under such circumstances. ID at 17 & n.11 . ¶20 In considering the Associate Chief of Staff’s testimony, the administrative judge applied the factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). ID at 17. In particular, t he administrative judge found that her hearing test imony regarding the reasons she declined to assign the appellant additional work and terminated his clinical privileges was consistent with her contemporaneous statements and actions after she learned he was unable to work full -time and cover a full panel of patients. Id.; see Hillen , 35 M.S.P.R. at 458 ( listing, among other factors for assessing credibility, the contradiction of the witness’s version of events by other evidence or its consistency with other evidence). The administrative judge further found that the Associate Chief of Staff’s willingness to allow the appellant to work the rest of the week after making his disclosure and her suggestion that he might take a part -time position in Gallup undermined his contention that she had act ed from ret aliatory animus. ID at 17; 0182 IAF, Tab 5 at 21. ¶21 The appellant argues on review that the administrative judge should have examined the “obvious inconsistencies” between the Associate Chief of Staff’s 12 prior statements and actions and her hearing testimo ny. PFR File, Tab 1 at 8. For instance, based on materials he obtained during discovery, the appellant argues that the agency was not seeking a full -time physician when he was hired and only needed coverage for 350 additional patients “with the opportuni ty to move up to about [ ] 1000 patients.” PFR File, Tab 1 at 11-13; 0371 IAF, Tab 5 at 6-7. However, as the administrative judge explained, the Associate Chief of Staff testified that she had initially received inaccurate information about the size of the panel to be co vered by a temporary Fee Basis P hysician. ID at 14 n.7. The appellant has not identified any record evidence contradict ing that testimony . ¶22 Next, t he appellant asserts that the Associate Chief of Staff’s testimony regarding termination of his privileges was disin genuous. PFR File, Tab 1 at 13-14. He argues that the record evidence shows that she instead had called into question his attitude towards patients and competence as a physician. Id. at 11-15; 0371 RAF, Tab 48 at 7. The interrogatory response the appellant cites in support of his argument states that two physicians had “ expressed concern ” to the Associate Chief of Staff about his performance. 0371 RAF, Tab 48 at 7. However, the same response also states that she ha d reviewed his charts in response to the concerns, and she determined that he met the facility performance standards. Id. Further, in the contemporaneous email exchange upon which the administrative judge relied, the Associate Chief of Staff assured the appellant she had acted because “[his] goals and that of the facility did not match. ” 0182 IAF, Tab 5 at 29. She explained that no adverse action had been taken against him and that she considered his credentials to be “solid.” Id. at 29-30. On t he Provider Exit Review form, she further certified that the appellant “[m] et generally accepted standards of clinical practice, and there was no concern for the safety of patients .” Id. at 25. The appellant has not identified any record evidence that the agency held him in disregard. No unfavorable reports were made to outside parties. HCD (testimony of credentialing Program Specialist). Finally, the fact that the Associate Chief of Staff did not cancel the appellant’s appointment and 13 suggested that he a pply for the part -time position in Gallup supports the conclusion that his performance and attitude towards patients were not at issue.6 0182 IAF, Tab 5 at 21, 32. ¶23 The appellant asserts that the speed with which his clinical privileges were cancelled is “glaring proof of retaliation” and should have raised the administrative judge’s suspicions. PFR File, Tab 1 at 28-30 (emphasis omitted) . However, like the administrative judge, we find the Associate Chief of Staff’s explanation of the agency’s monthly peer review process to be consistent with the immediate cancellation of privileges. ID at 16. We have considered the appellant’s alleged contradictory evidence regarding other part -time physicians with active privileges. PFR File, Tab 1 at 29. As expla ined below, we agree with the administrative judge’s finding that they were not similarly situated. ID at 19-20. Considering the record as a whole, we find that the speed with which his clinical privileges were terminated under the circumstances is not a strong indicator of retaliatory motive and does not undermine the strong evidence supporting the nonretaliatory reasons for the agency’s actions. ¶24 The appellant argued below and on review that the Associate Chief of Staff falsely stated that he resigned on the Provider Exit Review form, and by doing so, she sought to cover up the real reason for her actions. ID at 18; PFR File, Tab 1 at 6, 11, 16, 24 -27. The administrative judge found that, given the available choices, it was reasonable for the Associat e Chief of Staff to characterize the appellant’s actions as a resignation. ID at 18. The administrative judge additionally explained that the characterization was harmless because the agency 6 The appellant views both of these matters with suspicion. He asserts that the offer of a position in Gallu p was the agency’s “ first attempt to avoid culpability ” because he had not specified that location on his application. PFR File, Tab 1 at 15. He interprets the agency’s non cancellation of his appointment as a “ calculated move ” to hide the real reason for its actions. Id. at 24. However, we find the agency’s actions more indicative of a willingness to use the appellant’s services at a later date if he had been available on the agency’s terms. 14 only shares information from the Provider Exit Review form when it has identified concerns to report to stat e licensing boards and the agency had no such concerns in the appellant’s case. ID at 18 & n.12. The administrative judge thus found no reason to conclude that the Associate Chief of Staff was trying to hide the real reason of retaliatory animus for her actions. ID at 18. ¶25 We agree. Although the appellant did not write a formal resignation letter, PFR File, Tab 1 at 24, his email messages to the Associate Chief of Staff clearly stated that he was unavailabl e to work under the conditions the agency was offering and that he knew his appointment might be terminated for that reason, 0182 IAF, Tab 5 at 20-22. Additionally, the form gives the exit interviewer limited options for describing the reason for a provid er’s departure. Id. at 25. Of the available options, “resigned” best describes the appellant’s departure from the facility. In any event, the appellant was not disfavored by the agency’s characterization of his departure as a resignation. When we consi der all the pertinent evidence in the record , including that which might fairly distract from the conclusion, we thus find that the strength of the agency’s evidence in support of its actions weighs in favor of a finding that it would have taken the same actions in the absence of any disclosure. ¶26 Regarding the second Carr factor, the existence and strength of any motive to retaliate on the part of the agency officials involved in the decisions at issue, the administrative judge acknowledged that the Associ ate Chief of Staff might have had some motive to retaliate against the appellant, but she found that such motive would not have been strong. ID at 18-19. The administrative judge explained that the 1 ,195-patient panel was consistent with the agency’s saf ety guidelines, and there was no evidence that the appellant’s disclosure had led to or would lead to any action being taken against the Associate Chief of Staff or any other person. ID at 19. Additionally, the administrative judge found the Associate Chief of Staff’s immediate response to the disclosure —to ask the appellant if he would be willing to work for the rest of the week and to notify him 15 about an available part -time position —was i nconsistent with a strong retaliatory motive. Id. Indeed, our reading of the email exchange between the appellant and the Associate Chief of Staff suggests that she may not have even perceived his concerns about the size of the panel to have been a discl osure. 0182 IAF, Tab 5 at 20-22. ¶27 However , we have found that those responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, as the criticism reflects on them in their capacities as managers and employees. Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶ 65; Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28-29. However, in assessing Carr factor two, the Board and its administrative judges should avoid an overly restrictive analysis and shou ld fully consider whether a motive to retaliate can be imputed to the agency officials involved and whether those officials possessed a “professional retaliatory motive,” because the whistleblower’s disclosures implicated agency officials and employees in general. See Whitmore , 680 F.3d at 1370 -71. In conducting this analysis, all of the record evidence relevant to whether there was a motive to retaliate and the extent of that motive must be considered.7 See id. at 1368; Soto , 2022 MSPB 6 , ¶ 11. ¶28 In the instant case, we find that the administrative judge took too narrow an approach in her analysis of Carr factor two and placed too much emphasis on the fact that the appellant’s immediate managers did not suffer any consequences as a result of his disclosures. However, there is no evidence in this case that the appellant’s disclosures attracted the attention of high -level agency managers . In his petition for review, the appellant asserts that the lack of any justification for 7 In Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019), for example, the court noted that the administrative judge failed to discuss whether the deciding official h ad a “professional motive to retaliate,” but ultimately decided that Carr factor two slightly favored the agency based on its conclusion that the administrative judge’s crediting of the deciding official’s testimony that he lacked a motive to retaliate was “not unreasonable.” Robinson , 923 F.3d at 1019 -20. 16 the personnel action at issue and the speed with which the agency imposed it following his disclosure proves retaliatory motive. As discu ssed above, the administrative judge thoroughly considered and rejected the appellant’s arguments that the agency’s reasons for taking the personnel action were not reasonable or credible , and the appellant has not otherwise proffered any reason why the ad ministrative judge’s findings concerning the second Carr factor were incorrect. We find , therefore, that the administrative judge properly concluded that the agency’s motive to retaliate was slight. ¶29 As for the third Carr factor, the agency has not ident ified any evidence that it took similar actions against employees who are not whistleblowers . The appellant reiterates his argument regarding other Fee Basis Physicians who were treated differently. PFR File, Tab 1 at 19-20, 29 -31. However, the administrative judge found that not all Fee Basis Physicians are similarly situated employees. ID at 19. Instead, she f ound that the agency appointed Fee Basis P hysicians under individualized arrangements to meet specific needs. Id. For example, on e of the other fee basis providers was hired to see patients at a Saturday clinic, to see new patients and walk -ins on other days, and to cover for other physicians as her schedule allowed. ID at 19-20. She testified that she would not have taken a full-time position had one been offered and that she negotiated the specific terms of her appointment before accepting the position. ID at 20. The administrative judge found that such physicians were not similarly situated to the appellant and the evidence re garding their conditions of employment would not be persuasive under the third Carr factor. Id. The appellant has not identified any evidence in the record that suggests he negotiated the arrangement he believed he had in advance of accepting an appointm ent. When there is no relevant comparator evidence, the third Carr factor is effectively removed from consideration, although it cannot weigh in favor of the agency. Soto , 2022 MSPB 6 ¶ 18; see also Rickel v. Department of the Navy , 31 F.4th 1358 , 1365 -66 (Fed. Cir. 2022) . We find that this factor is neutral. 17 ¶30 If the first two Carr factors are only supported by weak evidence, the failure to present evidence of the third Carr factor may prevent the agency from carrying its overall burden. Smit h, 2022 MSPB 4 , ¶ 30; see also Miller v. Department of Justice , 842 F.3d 1252 , 1262 -63 (Fed. Cir. 2016) (where an agency presented little or weak evidence for the first two Carr factors, the lack of Carr factor three evidence “if anything[ ] tends to cut slightly against the government”). Here, b ased on the entire body of evidence, the administrative judge found that the agency showed by clear and convincing evidence that the Associate Chief of Staff would have terminated the appellant’s clinical privileges and not assigned him additional work in the absence of his disclosure. ID at 20. We have considered the appellant’s arguments and agree that his inability to meet the agency’s workload and scheduling expectations after he was appointed, rather than his protected disclosure, led to the term ination of his clinical privileges and the agency’s decision not to assign him additional work. Accordingly, we affirm the findings in the initial decision . The administrative judge must make findings on the appellant’s request for corrective action reg arding the alleged threat to terminate his appointment. ¶31 The administrative judge did not make findings on the merits for every personnel action that she found to be within the Board’s jurisdiction. In his first whistleblower complaint, OSC File No. MA-15-1650 , the appellant alleged that the agency first threatened to terminate him, then terminated his employment and clinical privileges after he made his disclosure to the Associate Chief of Staff. 0371 IAF, Tab 1 at 11-18. He references this alleged verbal threat several times in his petition for review. PFR File, Tab 1 at 5, 15, 25. A threatened personnel action may be a basis for the Board’s jurisdiction in an IRA appeal . See 5 U.S.C. § 2302 (b)(8) ; see, e.g., Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶¶ 24-27 (2015) (finding that the administrative judge erred in failing to reach the merits of whether the appellant’s protected disclosure was a co ntributing factor in the agency’ s decision to threaten to take a personnel action against him ). The 18 administrative judge here found that the appellant made a nonfrivolous allegation that the agency threatened termination of his employment in response to his alleged protected disclosure. 0371 IAF, Tab 7 at 2-3. He is thus entitled to a decision on the merits of that claim . Mastrullo , 123 M.S.P.R. 110, ¶ 26. ORDER ¶32 For the re asons discussed above, we remand these appeals to the Denver Field Office for further adjudication in accordance with this Remand Order.8 FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 8 As explained above, we affirm the administrative judge’s findings with respect to the personnel actions at issue in MSPB Docket No. DE-1221 -16-0182 -W-1. H owever, in order to efficiently process thes e appeals, which are based upon the same intertwined facts, we remand both appeals . See 5 C.F.R. § 1201.117 (a)(5). The administrative judge should incorporate her earlier findings conc erning the alleged termination of the appellant’s appointment, denial of work, and termination of the appellant’s clinical privileges into the remand initial decision and provide review rights for both appeals .	MUHAMMAD_KHURSHID_KHAN_DE_1221_15_0371_W_2_REMAND_ORDER_2004361.pdf	2023-02-21	null	S	NP
3,508	https://www.mspb.gov/decisions/nonprecedential/SEEBA_JASON_M_PH_0752_17_0162_I_1_FINAL_ORDER_2004379.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JASON M. SEEBA, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER PH-0752 -17-0162 -I-1 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Raymond C. Fay , Esquire, Washington, D.C., for the appellant. Jenifer Grundy Hollett , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Membe r Leavitt issues a separate dissenting opinion. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal from the Federal service. For the reasons discussed below, we GRANT the appellant ’s petition for review and REVERSE the initial decision. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The appellant was employed as a GS -11 Supervisory Correctional Officer (Lieutenant) with the agency’s Bureau of Prisons. Initial Appeal File (IAF), Tab 4 at 18, 122. On May 27, 2015, the re was an incident during which the appellant purportedly used excessive force to subdue a noncomplian t inmate and thereafter provided inaccurate information in reporting the incident. Id. at 56 -58. In late August or early September 2016 , the appellant pr ovided to the warden a lengthy memorandum outlining his career with the agency, his experiences surrounding the 2008 death of a fellow Correctional Officer , his motivations for becoming a Lieutenant , and his experience with the agency ’s use of force policy .2 Id. at 45-54. ¶3 On October 18, 2016, the agency issued the appellant a proposal notice, charging him with failure to follow the agency ’s use of force policy and providing inaccurate information on a Government document. Id. at 56 -58. The first sentence of the notice stated that, “I propose you be removed from your position of Supervisory Correctional Officer (Lieutenant), GS -007-11.” Id. at 56. The proposal notice subsequently stated that “[i]f this proposal is sustained, your removal wo uld be fully warranted and in the interest of the efficiency of the service.” Id. at 59. The proposal notice also stated that the appellant could reply to the deciding official orally, in writing, or both and that any reply had to be received by the deci ding official within 15 work days. Id. ¶4 The proposing official testified that an agency human resources manager wrote the notice,3 that it was his understanding that he was proposing that the appellant be demoted to the Correctional O fficer position , and t hat he did not 2 In the memorandum, the appellant also admitted that during the incident he said things that had “no place in a professional environment,” and that he apologized for that. IAF, Tab 4 at 54. 3 The human resources man ager indicated that his assistant drafted the proposal notice. Hearing Transcript at 153 (testimony of the human resources manager). 3 realize until he talked with the deciding official that the appellant ’s removal from the Federal service was a possibility. H earing Transcript (HT) at 12 5-28, 131 -32, 141 (testimony of the proposing official). The proposing official specifically testified that , while giving the appellant the proposal notice , he told the appellant that he was proposing his removal from a supervisory position and that he would become an offic er. Id. at 131-32, 141 (testimony of the proposing official). The deciding official similarly testified that, from his conversations with the proposing official, it was his understanding that the proposing official “maybe just [wanted the appellant] removed from the lieutenant ’s job, ” as opposed to being removed fr om the Federal service. Id. at 188-89 (testimony of the deciding official). ¶5 The appellant ’s oral repl y took place on October 31, 2016 . IAF, Tab 4 at 23. He was not represent ed. The appellant testified that, at the beginning of the oral reply meeting, he was “floored, stunned, shocked,” to learn that he was facing removal from the Federal service. HT at 283 (testimony of the appellant). The deciding official also testified that the appellant “was pretty surprised ” to learn , at the oral reply meeting, that his removal from the agency was a possible penalty. HT at 190 (testimony of the deciding official). ¶6 After his or al reply, the appellant resubmitted a copy of the memorandum he submitted in late August or early September 2016 and included a transmit tal memorandum stating that he was requesting that the memorandum be considered in determining what discipline he would receive. IAF, Tab 4 at 55. The appellant also apologized for submitting the information “at this later date,” but indicated that he wa s initially informed that he was facing a demotion from his Lieutenant position but that he had been advised that day that he was facing removal from 4 the agency.4 Id. The appellant concluded that, although demotion is a serious repercussion, removal “is a very different scenario.” Id. ¶7 The deciding official issued a decision removing the appellant effective January 3, 2017. Id. at 18 -22. This appeal followed. IAF, Tab 1. The appellant chall enged the charges on the merits, argued that the penalty was unreasonable, and asserted that he was denied due process when the proposing official informed him that he was facing a demotion and he learned for the first time at the oral reply that he was facing removal. Id. at 9-14. ¶8 After holding the appellant ’s requested hearing, t he administrative judge sustained the charges, denied the appellant ’s affirmative defense, determined that the agency established nexus, and found the penalty to be reasonable. IAF, Tab 36, Initial Decision (ID). In finding that the agency afforded the appellant minimal due process before effecting his removal, the administrative judge reasoned that “[t]he appellant ’s oral and written responses reflect that he was aware of the nature of the charges and afforded an opportunity to subst antively respond to the proposal notice .” ID at 18. ¶9 On review, the appellant again challenges the charges on the merits, argues that he was denied due process, and asserts that the p enalty was unreasonable . Petition for Review (PFR) File, Tab 1. The ag ency has filed a response opposing the petition, and the appellant has filed a reply to the agency ’s response. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶10 When , as here, a public employee has a property interest in his continued employment, the G overnment cannot deprive him of that interest without due 4 Although the appellant’s statement in the transmittal memorandum suggests that it was written on October 31, 2016, the d ate of the oral reply, the memorandum is dated November 4, 2016, and bears a notation that it was received on that date. IAF, Tab 4 at 55. The record shows that the deciding official considered the written reply. Id. at 19. 5 process. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538 (1985). The U.S. Supreme Court has described the requirements of due process as follows: The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer ’s evidence, and an opportunity to present his side of the story. Id. at 546. As the Court explained in Loudermill , the need for a meaningful opportunity for the employee to present his side of the story is important for two reasons. First, an adverse action “will often involve factual disp utes,” and consideration of the employee ’s response is of “obvious value in reaching an accurate decision.” Id. at 543. Second, “[e]ven where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.” Id. ¶11 Our reviewing c ourt, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has, as it must, followed the U.S. Supreme Court ’s analysis in Loudermill, stating that “the employee ’s response is essential not only to the issue of whether the allegations are tru e, but also with regard to whether the level of penalty to be imposed is appropriate.” Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 ( Fed. Cir. 1999). In Stone , the Federal Circuit held that in some circumstances it is a due process violation for a deciding official to consider additional material regarding the reasons for the action of which the appellant was not provided notice. Id. at 1376. The Federal Circuit specifically extended the holding in Stone to the consideration of additional information in determining the penalty. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011). 6 ¶12 In this appeal, it is undisputed that the agency proposing official told the appellant, as he gave him th e proposal notice, that he was proposing the appellant ’s demotion from Lieutenant to officer. HT at 131 -32, 141 (testimony of the proposing official) . The notice itself, although perhaps clear to one versed in the intricacies of Federal employment law, w as, when combined with the proposing official ’s statement, far from clear .5 The administrative judge found credible the appellant ’s assertion that he understood the proposal notice as proposing his demotion rather than his removal from the Federal service . ID at 17. The proposing official believed he was proposing a demotion, and expressed such to the appellant, who relied upon the proposing official’ s representati ons. To be clear, this is not a case where in the appellant unreasonably had a unilateral m isunderstanding of the agency action. ¶13 Thus, when he appeared for his oral reply , the appellant was shocked and surprised . He learn ed for the first time that the agency ’s deciding official was considering a significant additional fact —that he was facing removal from the Federal service and not just a demotion. The deciding official did not stop the proceedings, clarify the appellant ’s misunderstanding, and afford him addi tional time to reply.6 The original response period set in the proposal notice expired on November 8, 2016, eight days after the appellant learned that he was facing a removal, and the appellant hastily submitted the memorandum he previously submitted as an additional reply, but that memorandum did not address the proposed adverse action. 5 The proposal notice did no t state anywhere that the appellant was proposed for removal from the Federal service , which may have clarified matters in this instance. 6 Affording the appellant a new period of time to reply would not have delayed the agency’s ultimate decision as the d eciding official did not issue his decision notice until over 2 months after the oral reply. IAF, Tab 4 at 19. The fact that the appellant, who, as noted, was not represented at the oral reply, failed to seek an extension of time to respond when he learned that he faced removal is of no import to a due process analys is. It is the agency’s obligation to afford due process, not the appellant’s to request it. 7 ¶14 Some courts have found that due process is afforded when an employee receives an opportunity to respond immediately after being informed of the possible action against him. See Sutton v. Bailey , 702 F.3d 444 , 446 -49 (8th Cir. 2012) (finding that there need not be a delay between the notice and the opportunity t o respond); Merrifield v. Board of County Commissioners for the County of Sant a Fe, 654 F.3d 1073 , 1078 (10th Cir. 2011) (same); Staples v. City of Milwaukee , 142 F.3d 383 , 386 -87 (7th Cir. 1998) (stating that oral notice contemporaneous with the opportunity to reply may, in some circumst ances, satisfy due process); Morton v. Beyer , 822 F.2d 364 , 371 n.10 (3d Cir. 1987) (same). The Federal Circuit precedent does not embrace such a view. ¶15 In Stone , the court quoted with approval the Board ’s decision in Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 304 (1981), for the proposition that “aggravating factors on which the agency intends to rely for imposition of an enhanced penalty . . . should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors before the agency ’s deciding official.” 179 F.3d at 1376 (emphasis added) . Likewise, i n O’Keefe v. U.S. Postal Service , 318 F.3d 1310 , 1315 (Fed. Cir. 2002) , the court held that , because due process requires that an employee be given notice of the charge and specifications against him in sufficient detail to allow the employee to make an informed reply, it was a due process violation to justify a penalty based on allegations not set forth in the notice of proposed removal. Similarly, in Pope v. U.S. Postal Service , 114 F.3d 1144 , 1148 (Fed. Cir. 1997), the court held that “[d]ue process requires that the charges in the notice be set forth ” with enough detail to allow the employee to make an informed response (emphasis added). More recently , in a nonprecedential decision in Howard v. Department of the Air Force , 673 F. App ’x 987, 989 (Fed. 8 Cir. 2016),7 the court described its holding in Ward as explaining that “ due process violations occur when an agency ’s removal decision is based on factors not included in the notice of proposed removal ”8 (emphasis added) . ¶16 Consistent with the precedent set forth above, t he Board also has recognized that wh en an agency intends to rely on aggravating factors in determining the penalt y, such factors should be included in the advan ce notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency ’s deciding official . Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161, ¶ 12 (2012) ; Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 7 (2012) ; Lopes v. Department of the Navy , 116 M.S.P.R. 470, ¶ 5 (2011). The Board has recognized that a reply period as short a s 5 days may pass constitutional muster, provided that the employee received prior written notice of the proposed separation. McCormick v. Department of the Air Force , 98 M.S.P.R. 201 , ¶ 3 (2005) . Here, however, in issuing the advance notice of a proposed adverse action , the agency misled the appellant (and apparently the proposing official as well) about the essential nature of the adverse action that it was proposing and only corrected that misinformation at the oral reply. As the Federal Circuit has held in the context o f involuntary resignation, “[a] decision made with blinders on, based on misin formation or a lack of information, cannot be binding as a matter of fundamental fairness and due process.” Middleton v. Department of Defense , 185 F.3d 1374 , 1382 (Fed. Cir. 1999) (internal quotation marks omitted) ; see Cov ington v. Department of Health and Human Services , 750 F.2d 937 , 943 (Fed. Cir. 1984) ( explaining that the agency’s failure to 7 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v. Department of Veterans Aff airs, 123 M.S.P.R. 453 , ¶ 11 n.5 (2016). 8 The Federal Circuit has articulated the principles stated in the precedential decisi ons set forth above in other nonprecedential decisions . See Brewer v. Department of Defense , 249 F. App’x 174, 176 (Fed. Cir. 2007); Allen v. U.S. Postal Service , 99 F. App’x 924, 927 (Fed. Cir. 2004). 9 provide the appellant with proper notice regarding his appeal rights precluded him from making an informed choice ). ¶17 In sum, consistent with the binding Federal Circuit precedent set forth above , we find that the agency’s removal action was implemented without providing the appellant, a tenured Federal employee, the required constitutional due process. The refore, the agency ’s action must be reversed until such time as the agency implements a constitutionally correct adverse action. See Stone , 179 F.3d at 1376 -77.9 ORDER ¶18 We ORDER the agency to cancel the appellant ’s removal effective January 3, 2017 . See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶19 We also ORDER the agency to pay the appellant the correc t 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 effort s to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits , we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶20 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s O rder and of the actions it has 9 Considering that the proposing official intended on ly to propose a demotion from the supervisory position, it remains to be seen as to whether a new proposal would contain the same proposed penalty. Either way, the appellant should have the ability to raise the fact that the proposing official intended on ly to demote him, as this could have been a consideration in the application of the Douglas factors. 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). ¶21 No later th an 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶22 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Servi ce (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be foun d at 5 C.F.R. §§ 1201.201 , 1202.202, 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 HTS10 This Final Order constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claim s determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your c ase, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circui t, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 Since 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. 12 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 13 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 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.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 14 disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U. S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.11 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals 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. 11 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk o f the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DF AS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment . Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severan ce pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to kee p the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a sep arate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if cas e is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certificati on 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 computati on 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. DISSENTING OPINION O F TRISTAN L. LEAVITT in Jason M. Seeba v. Department of Justice MSPB Docket No. PH -0752 -17-0162 -I-1 ¶1 For the reasons explained below, I respectfully dissent fr om the majority opinion in this case. ¶2 By letter dated October 18, 2016, the proposing official notified the appellant: “I propose you be removed from your position of Supervisory Correctional Officer.” I nitial Appeal File (I AF), Tab 4 at 56. The agency afforded the appellant 15 working days, until November 8, 2016, to reply orally, in writing, or both. Id. at 59. Prior to the issuance of the proposal letter, the appellant had already submitted a memorandum dated August 24, 2016, purporting to provide his “written response to the charges” against him. Id. at 45-54. The ap pellant also gave an oral reply on October 31, 2016, during which he and the deciding official discussed his response to the charges against him in detail. Id. at 23-28. ¶3 At the start of his oral reply, the appellant was informed, as was stated in the wr itten proposal notice, that the recommended penalty was removal from Federal service . Hearing Transcript (HT) at 190, 283 (testimony of the appellant and deciding official). The appellant testified he was in “disbelief” and “wasn’t prepared to hear that” because of information the proposing official had provided to him. HT at 283-84. Specifically, it is undisputed that when the proposing official presented the proposal letter to the appellant, he told the appellant that the proposal was only to demote h im from a supervisory position and not to remove him from Federal service. HT at 141 (testimony of proposing official). The administrative judge found credible the appellant’s assertion that he initially misunderstood the nature of the action proposed ag ainst him. Initial Decision 2 (ID) at 17. Even accepting that credibility finding, I disagree with my colleagues that the appellant was denied due process as a result of his initial confusion. ¶4 The essential requirements of due process are notice and an o pportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985). The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story and reasons why the proposed action should not be taken. Id. (emphasis added). To require more than this prior to removal would intrude to an unwarranted extent on the Government’s interest in quickly removing an unsatisfactory employee. Id. As our reviewing court has explained, the requirement that an employee be given an opportunity to present his side of the story is not a guarantee that the employee must present his story to the agency prior to removal. Darnell v. Department of Transpor tation , 807 F.2d 943, 945 (Fed. Cir. 1986). “An opportunity to present is quite different from a presentation in fact .” Id. (emphasis in origin al). ¶5 For instance, in Flores v. Department of Defense , 121 M.S.P.R. 287 , ¶ 4 (2014), the appellant was removed following the revoc ation of his eligibility for access to occupy a sensitive position. The Defense Office of Hearings and Appeals (DOHA) made an initial recommendation to restore the appellant’s access; however, the final decision of the Clearance Appeals Board (CAB) reject ed that recommendation and upheld the revocation. Id., ¶ 3. The appellant did not respond to the proposed removal action, despite being afforded the opportunity to do so. Id., ¶ 11. He asserted that he did not respond because the deciding official gave him the impression that the deciding factor would be the favorable DOHA recommendation. Id. The Board rejected this argument, noting that by the time the proposal notice was issued, the appellant was aware of the CAB’s final determination. Id. ¶6 It is true, as to due process, that the employee’s opportunity to respond is essential not only as to the issue of whether the allegations are true, but also with 3 regard to whether the level of penalty to be imposed is appropriate. Stone v. Federal Deposit Ins urance Corporation , 179 F.3d 1368 , 1376 (Fed. Cir. 1999) (citing Loudermill , 470 U.S. at 543). However, here, similar to Flores , any misinforma tion the appellant may have received concerning the nature of the action proposed against him was resolved at the start of his oral reply, at which point he admittedly understood he could be removed from Federal service. HT at 283 (testimony of the appellant); IAF, Tab 4 at 55. The appellant still had the opportunity to address the matter during his oral reply, as well as a remaining 8 calendar days to provide a written reply. See IAF, Tab 4 at 59. As the majority acknowledge s, the Board has found an even shorter reply period of 5 calendar days sufficient to satisfy minimum due process requirements. See McCormick v. Department of the Air Force , 98 M.S.P.R. 201 , ¶ 3 (2005); cf. 5 U.S.C. § 7513 (b)(2) (“a reasonable time, but not less than 7 days , to answer orally and in writing and to furnish affi davits and other documentary evidence in support of the answer” (emphasis added)). ¶7 Significantly, o n November 4, 2016 (four days after his oral reply ), the appellant submitted additional documentation to the human resources (HR) manager and requested tha t the deciding official consider it. IAF, Tab 4 at 55. The appellant took this action based on his understanding that he was “facing removal and termination from the Bureau of Prisons” and not merely demotion . Id. The HR manager testified he presented this submission to the deciding official for consideration with the rest of the disciplinary file. Id. at 161-62, 167 (testimony of HR manager). The appellant’s removal did not become effective until January 3, 2017. Id. at 18-22. ¶8 To the extent that the appellant believed he required more than 8 calendar days to make a meaningful reply after the misunderstanding was clarified, he could have requested an extension. But see Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 8 (2015) (finding no due process violation where the agency denied the appellant’s request for an extension beyond the 14 -day reply period, 4 which t he Board found constitutionally sufficient to meet minimum due process requirements). He did not do so. HT at 307. His assertion that he “didn’t think that was an option,” id., is belied by the proposal notice, which explicitly informed him: “Considera tion will be given to extending this time limit if you submit a written request, to the Warden, stating your reasons for desiring more time.”1 IAF, Tab 4 at 59. The majority finds the appellant’s failure to seek an extension “is of no import to a due pro cess analysis” because “[i]t is the agency’s obligation to afford due process, not the appellant’s to request it.” I disagree. ¶9 As previously stated, due process requires provision of an opportunity to respond , and an appellant’s failure to avail himself of such an opportunity does not mean that his due process rights were violated. See Darnell , 807 F.2d at 945; see also Flores , 121 M.S.P.R. 287 , ¶ 11 (a tenured Federal employee may waive his right to due process “provided the waiver is knowing, voluntary, and intelligently made”). W hile agencies must provide a meaningful opportunity to respond, employees must put forth reaso nable effort in exercising that opportunity. ¶10 For example, in Smith v. U.S. Postal Service , 789 F.2d 1540 , 1541 (Fed. Cir. 1986), the agency sent cop ies of its proposal notice to the petitioner and his designated union representative on March 20. The union representative scheduled an oral reply for April 3 and the petitioner did not appear, so the union representative provided the reply on his behalf. Id. at 1541 -42. The deciding official considered the union representative’s reply in reaching his decision to remove the petitioner, effective April 23. Id. at 1542. Notwithstanding, the petitioner asserted the agency violated his due process rights b ecause he did not receive the proposal notice until April 5, after the oral reply occurred, and was 1 The appellant also asserts he would have hired an attorney had he known the agency was contemplating his removal from Federal service. Petition for Review File, Tab 4 at 7. The proposal notice informed him of his right to designate a representative, IAF , Tab 4 at 59, but he apparently did not exercise that right before his removal, even after his oral reply. 5 therefore “not given the opportunity to defend himself.” Id. at 1543. Assuming arguendo that the petitioner’s claim of belated receipt was true, the Feder al Circuit found he failed to establish the agency violated his due process rights. There was no evidence that the petitioner was “denied his right to constitutional due process by agency action, negligence, or design.” Id. at 1543. Further, there was no evidence that he had made “even a reasonable effort” to assert his right to due process after the date he alleged receiving the proposal notice; there was no evidence that he attempted to present any evidence, or that the agency prevented him from present ing any evidence. Id. at 1543 -44. The Federal Circuit noted that “agencies are not psychic” and, in this instance, the agency could not have known the petitioner had not received a copy of the proposal notice, particularly given that his union representa tive arranged and presented an oral reply. Id. at 1544. ¶11 In Flores , the Board found irrelevant the appellant’s alternative assertion that he believed responding to the proposed action would be futile in light of the CAB’s final determination. 121 M.S.P.R. 287 , ¶ 11. Regardless of the reason for the appellant’s choice not to respond, “the agency was not obligated to read his mind an d schedule a response on its own initiative.” Id. Because there was no indication “that the appellant made a reasonable effort to assert his right to respond, or that the agency denied him his right to respond through action, negligence, or design,” the Board found he was not denied due process. Id. ¶12 As another example, in Harding v. U.S. Naval Academy , 567 F. App’x 920, 924-25 (Fed. Cir. 2014),2 the petitioner asserted the agency violated her due process rights by relying on a document she was unaware would be relied upon. However, the agency had inf ormed her of her right to access the materials that would be relied upon, and she did not allege that she was denied the opportunity 2 The Board may choose to follow nonprecedential Federal Circuit decisions it finds persuasive. See Dean v. Office of Personnel Management , 115 M.S.P.R. 157 , ¶ 14 (2010). 6 to review those materials or that the document at issue was not included in them. Accordingly, the Federal Circuit found h er due process rights were not violated. ¶13 In the instant appeal, the appellant responded to the charges against him; was told of the nature of the proposed action 8 calendar days before the end of the reply period ; submitted an additional written reply af ter realizing he could be removed from Federal service; and never indicated to the agency that he required additional time, despite being explicitly informed he could make such a request. ¶14 The majority seems to imply that the requirements of due process c annot be satisfied unless all information to be considered is set forth in the written proposal notice. Again, I disagree.3 Due process is not a technical conception with a fixed content unrelated to time, place and circumstances; rather, it is flexible and calls for such procedural protections as the particular situation demands. Gajdos v. Department of the Army , 121 M.S.P.R. 361, ¶ 18 (2014). The root requirement of the Due Process Clause is that an individual be given an opportunity to respond before he is deprived of any significant property interest, including a meaningful opportunity to invoke the discretion of the decisi onmaker before the termination takes effect. Loudermill , 470 U.S. at 542-43 (citations omitted). In short, the ultimate question is whether the 3 In any event, the agency’s written proposal was to remove the appellant from his “position of Supervisory Correctional Officer.” IAF, Tab 4 at 56. The written notice neither referenced a proposed demotion nor specified any alternate position to which the appellant might be reassigned. See generally id. at 56-59. In fact, in addition to noting that the appellant’s actions were “not consistent with the manner in which a correctional supervisor should behave,” the proposal notice also expressed concern that the appellant may not be “one to whom the care, custody, and correction of federal criminal offender s may be entrusted,” suggesting that the concern extended beyond the appellant occupying a Lieutenant role and included him occupying a law enforcement position generally. Id. at 58-59. Accordingly, I believe the required information was set forth in the proposal notice. 7 appellant had a meaningful opportunity t o respond before the action was taken.4 ¶15 Even if the written proposal notice was unclear, there can be no dispute that the appellant received the information to which he was entitled well before the removal action became effective over 2 months later . In my view, the fact that this clarification was given verbally during t he oral reply is far from fatal, particularly where the appellant had time left to make any additional submission he desired in support of his continued employment with the agency. Under the circumstances presented here, I would affirm the administrative judge’s finding that “the agency afforded the appellant minimal due process before effecting his removal.” See ID at 17-18. /s/ Tristan L. Leavitt Member 4 Notably, there are instances when minimum due process requirements may be satisfied despite information not being included in the proposal notice. See, e.g. , Wilson v. Department of Homeland Security , 120 M.S.P.R. 686 (2014) (although the deciding official’s penalty determination was partly based on an aggravating factor not cited in the proposal notice, his cons ideration of this factor did not undermine the appellant’s right to due process because she made a “specific and significant” response to this factor in her reply) , aff’d , 595 F. App’x 995 (Fed. Cir. 2015) ; Addison v. Department of Health and Human Service s, 46 M.S.P.R. 261 , 267 (1990) (in performance based actions under chapter 43, information imparted in counseling sessions during the performance improvement period can make up for a lack of specificity in the proposal notice because the purpose of specificity in a proposal notice is to provide the employee with a fair opportunity to oppose his removal by informing him of the reasons for the proposed action with sufficient particularity to apprise him of the allegations he must refute or the acts he must justify), aff’d , 945 F.2d 1184 (Fed. Cir. 1991).	SEEBA_JASON_M_PH_0752_17_0162_I_1_FINAL_ORDER_2004379.pdf	2023-02-21	null	PH-0752	NP
3,509	https://www.mspb.gov/decisions/nonprecedential/BAILEY_BILL_DA_0432_16_0360_I_1_REMAND_ORDER_2004423.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BILL BAILEY, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DA-0432 -16-0360 -I-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Jennifer Duke Isaacs , Atlanta, Georgia, for the appellant . Aaron T. Noble , Corpus Christi, Texas, for the agency . BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s action demoting him for unacceptable performance pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition for review , VACATE the initial decision, and REMAND the appeal to the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 regional office for further adjudication consistent with the U.S. Court of Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021) . BACKGROUND ¶2 The appellant, a Sheet Metal Mechanic (Aircraft) at the agency’s Corpus Christi Army Depot, was demoted based on unsatisfactory performance effective April 17, 2016. Initial Ap peal File (IAF), Tab 2 at 14-16, Tab 9 at 45. He was reduced in pay and grade from WG -3806 -10 to WG -3806 -08 following his completing a performance improvement plan (PI P) that lasted approximately 90 days. IAF, Tab 2 at 8-16, Tab 9 at 45. Prior to his de motion, the appellant had been in grade as a WG -3806 -10 for over 9 years. IAF, Tab 16 at 4. The appellant is rated on his performance in four critical elements. IAF, Tab 9 at 72-73. The PIP was based on the appellant’s unsatisfactory performance for Critical Elements 1 (Technical Competence) and 4 (Responsibility/Dependability) during the March 1, 2015, through February 29, 2016 rating period. Id. at 70-75. The agency found his performance to be deficient for subelements 1(a) and 4(a), which involved meeting or exceeding weekly and monthly work schedules and accomplishing assignments within established time standards. Id. The agency did not allege any issues with quality or ot her aspects of the appellant’s work. Prior to being placed on the PIP, the appellant had been repeatedly counseled to improve the speed at which he completed his work. Id. at 70-71; IAF, Tab 16 at 4. ¶3 The PIP notice documented in detail the appellant’s observed performance deficiencies. IAF, Tab 9 at 67-68. The PIP notice further informed the appellant that his supervisor would assess his performance pursuant to the performance standards for the next 60 days. Id. at 68. The PIP notice also stated tha t management would conduct weekly meetings with the appellant to review work assignments and to discuss recommended improvements. Id. at 75-78. The record shows that the appellant met with his supervisor approximately once a 3 week during the PIP period. Id. at 76-78; IAF, Tab 16 at 4-5. The PIP was originally implemented from August 10 to October 9, 2015. IAF, Tab 9 at 67-68. Later, the agency extended the PIP from November 19 to December 18, 2015. IAF, Tab 16 at 5. At the end of the second PIP perio d, the agency determined that the appellant’s performance was still unacceptable in the two critical elements because he failed to complete his assigned tasks in a timely and cost-effective manner. IAF, Tab 9 at 60-65. The agency demoted the appellant effective April 17, 2016. Id. at 45-49. ¶4 The appellant timely appealed his demotion to the Board . IAF, Tab 1. The appellant admitted that he did not meet the timeline ss requirements for subelements 1(a) and 4(a) during the PIP period. IAF, Tab 25 at 5-6. However, he asserted that he was not provided a reasonable opportunity to improve under the PIP and that the agency’s system used to track his performance on timeliness was “not designed to be used in this manner” and could contain errors. Id. at 6-7. ¶5 The administrative judge decided the appeal on the pleadings after the appellant withdrew his request for a hearing. IAF, Tabs 20-21, Tab 29, Initial Decision (ID) at 1. In an initial decision, the administrative judge found that the agency establis hed that its performance standards were objective, reasonable, and communicated to the appellant in advance; that the appellant was warned that his performance was unacceptable; and that he was given a reasonable opportunity to improve his performance. ID at 11-16. He further found that the record did not support the appellant’s claims that the agency assigned him more difficult tasks and that the agency gave him insufficient guidance during the PIP. ID at 14-16. The administrative judge concluded that the agency showed that the appellant’s performance was unacceptable during the PIP. ID at 16-17. He rejected the appellant’s argument regarding the tracking system as speculative and concluded that nothing on the face of the agency’s logs containing time liness data would suggest they were unreliable. ID at 8-9. 4 ¶6 The appellant also asserted an affirmative defense of whistleblower reprisal. IAF, Tab 25 at 4-6. In early 2014, he filed complaints with the agency’s Office of Inspector General (OIG) after r eporting to his immediate supervisor that a fellow employee was not reporting for work on a regular basis. IAF, Tab 1 at 6-7, 14, Tab 7 at 5-6, Tab 13 at 2. He additionally reported that other employees in his shop failed to keep track of their tools and consumables, first to his immediate supervisor and then to another manager. IAF, Tab 1 at 7-8, 14, Tab 7 at 6, Tab 9 at 55-59, Tab 13 at 2. The appellant argued that the agency had not taken similar administrative action against other employees who had difficulty in completing their work in a timely manner, and that this difference in treatment showed that the agency sought to unfairly punish him for his protected activity under 5 U.S.C. § 2302 (b)(8) and (b)(9)(C). IAF, Tab 1 at 16-17. ¶7 The administrative judge found that the appellant failed to establish his affirmative defense of reprisal for whistleblowing and other protected activity. ID at 17-21. The administrative judge found that the appellant proved by preponderant evidence that he made protected disclosures to agency managers and engaged in a protected activity by filing a complaint with the agency’s OIG. ID at 18-19. He further found that the appellant established that his protected activities were a contributing factor in the agency’s decision to demote him because of unacceptable performance during a PIP. ID at 19; see 5 U.S.C. § 2302 ; Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283 , ¶ 15 (2006). He concluded, however , that the agency met its burden to show by clear and convincing evidence that it would have taken the same action in the absence of the disclosures and other protected activity by providing strong evidence justifying the demotion. ID at 19-21. According ly, the administrative judge affirmed the agency’s demotion action. ID at 21. 5 DISCUSSION OF ARGUME NTS ON REVIEW ¶8 At the time the initial decision was issued, the Board’s case law stated that, in an appeal of a performance -based action under chapter 43, the agency must establish the foll owing by substantial evidence:2 (1) the Office of Personnel Management approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of h is position; (3) the appellant’s performance standards were valid under 5 U.S.C. § 4302 (b)(1);3 (4) the agency warned the appellant of the inadequacies of h is performance during the appraisal period and gave h im a reasonable opportunity to demonstrate acceptable performance; and (5) the appellant’s performance remained unacceptable in one or more of t he critical elements for which he was provided an opportunity to demonstra te acceptable performance. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010) . The appellant has not shown that the administrati ve judge made erroneous factual findings . ¶9 The appellant argues that the administrative judge erred in finding that he failed to identify any similarly situated employees who also had been subject to a performance -based action. Petition for Review (PFR) File, Tab 1 at 10-11. He asserts that his immediate supervisor supervised at least 13 additional persons who exceeded their allotted hours for performing certain tasks, yet he was the only person in his work unit who was placed on a PIP. Id. He asserts that the administrative judge failed to consider as similarly situated several employees 2 Substantial evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, might accep t as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4 (p). 3 As a result of the enactment of the National Defense Authorization A ct for Fiscal Year 2018, Pub. L. No. 115-91, § 1097(d)(1), 131 Stat. 1283, 1619 (2017), the criteria that were set forth in 5 U.S.C. § 4302 (b)(1) at the time the initial decision was issued now appear in 5 U.S.C. § 4302(c)(1). 6 who were temporarily assigned to his unit, even though those employees were working on the same or similar projects with the same performance expectations under the same supervisor. Id. ¶10 We find that the appellant has mischaracterized the administrative judge’s analysis. Although other employees in the same work unit exceeded their allotted hours for the same or similar projects, no other employee did so to the extent that the appellant did. IAF, Tab 17 at 27-29. In that respect, the administrative judge concluded, the appellant had no true comparators. ID at 20. For example, Employee 2, the colleague with the third -highest number of overrun hours between January 1, 2015, and July 6, 2016, accrued slightly more than half the number of the overrun hours that the appellant amassed. IAF, Tab 17 at 27-28. The record also shows that the agency did not fail to act regarding the other employees with signifi cant numbers of overrun hours. Id. at 27-29. For example, Employee 2 received a failing rating during the March 1, 2015, to February 29, 2016 rating period, when the appellant likewise received a failing rating. Id. at 64-69; IAF, Tab 9 at 70-73. Altho ugh Employee 2 left work soon thereafter when he incurred a compensable injury, the appellant’s immediate supervisor stated that Employee 2 would be placed on a PIP once he returned to full duty. IAF, Tab 17 at 27-28, 65. Employee 3, who also accrued a h igh number of overrun hours, retired after he received a memorandum of warning regarding slow work, and the remaining employees either were reassigned to different supervisors or returned to their original work units, and those with higher numbers of overr un hours received letters of warning. Id. at 27-29. Additionally, most employees under the appellant’s immediate supervisor did not incur overrun hours. There were approximately 30 employees in the appellant’s work unit, and only 13 of those incurred overrun hours. IAF, Tab 24 at 11. ¶11 The appellant argues that the administrative judge erred in determining that there was nothing more that the agency could have done to assist him in improving his performance. PFR File, Tab 1 at 11. He asserts that th e agency 7 could have provided training or assigned another employee to assist him in learning to perform his assigned tasks more quickly; rather, the agency chose to watch him fail. Id. The appellant has not identified any evidence in the record that woul d support his conclusions. To the contrary, t he administrative judge described in detail the agency’s efforts to provide the appellant with a reasonable opportunity to improve his performance. ID at 14-16. As the administrative judge correctly pointed o ut, the assistant that the appellant requested was unavailable because his expertise was needed elsewhere, and in any event, the appellant encumbered a journeyman -level position and should have been able to work independently or even lead a team of less -experienced personnel. ID at 15; IAF, Tab 9 at 108-09, Tab 16 at 4, Tab 24 at 9-11. Moreover, the record shows that the appellant received frequent assistance from his immediate supervisor, including coaching on time management, and his work assignments du ring the PIP were “no different from the type of work he had been performing before the PIP,” neither measurably easier nor more difficult. IAF, Tab 9 at 76-78, Tab 24 at 9-10; see Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶¶ 7-18, 33 (2013) (finding that the agency presented sufficient evidence to show that the appellant’s performance was unacceptable in certain critical elements, notwithstanding her claims that she was not provided enough time to demonstrate acceptable performance, her assignments during the PIP were out of the ordinary, and the agency provided her with “minimal to nonexistent assistance”) . ¶12 Next, the appellant argues that the administrative judge erred in finding that he received less difficult assignments during the PIP, which should have made it easier for him to perform his duties without incurring overruns. PFR File, Tab 1 at 12; ID at 15. The appellant’s immediate supervisor stated in his declaration that he assigned the appellant work at the WG -8 level, rather than work at the WG-10 level , during the PIP. PFR File, Tab 1 at 12; IAF, Tab 24 at 9-10. The appellant asserts that work at the WG-8 level may be easier in theory, but those assignments did not represent his typical workload and in some cases included 8 unfamiliar tasks, such as the assignment he received to upgrade the cockpit door posts for an aircraft. PFR File, Tab 1 at 12; IAF , Tab 9 at 61-62. ¶13 Here, the appellant correctly notes that the administrative judge credited the immediate supervisor’s declaration “wherein he stated that the appellant was actually provided easier work than his job -level demanded during the PIP period. ” ID at 15. The declaration, however, is considerably more nuanced than the initial decision suggests. In the declaration, the appellant’s immediate supervisor states that he assigned the appellant WG -8, and not WG -10, level work because he “wanted [the] Appellant to excel, and because due to difficulties getting him to do WG-10 work before the PIP, he had not been performing that level of work for some time.” IAF, Tab 24 at 9-10. The supervisor added that the PIP work assigned to the appellant “was no different from the type of work he had been performing before the PIP; it was not measurably easier or more difficult .” Id. at 10 (emphasis added). He explained, “WG -10 work encompasses all WG -8 work and adds more advanced functions. Even a WG -10 mechan ic newly assigned to WG -8 work would not be facing unfamiliar tasks, because going from WG-10 to WG -8 level work simply removes tasks.” Id. The appellant has not identified any evidence in the record that would show that his supervisor’s explanation in the declaration is inaccurate. We find that the declaration and the record as a whole support the administrative judge ’s decision to affirm the demotion , and any error in the initial decision’s description of the declaration is not of suff icient weight to change the outcome . The agency gave the appellant a reasonable opportunity to demonstrate acceptable performance. ¶14 The appellant argues that, in relying on the immediate supervisor’s declaration, the administrative judge erroneously det ermined that he was given a reasonable opportunity to improve his performance during the PIP. PFR File, Tab 1 at 12-14. The appellant asserts that the administrative judge gave too much emphasis to the following facts: a 90 -day PIP is relatively long, t he appellant 9 was afforded the opportunity to work on several different projects during the PIP, and he was assigned work at the WG -8 level. Id. at 13; ID at 14-15. The appellant asserts that the agency offered him sufficient time in which to improve his performance, but inadequate assistance in doing so. PFR File, Tab 1 at 13. He further asserts that the administrative judge gave too much weight to an “unsupported statement” in his immediate supervisor’s declaration regarding the nature of his duties du ring the PIP. Id. His duties at the WG -8 level were not necessarily easier, he explains, because they included tasks he had not previously or regularly performed. Id. ¶15 As stated, t o prevail in an appeal of a performance -based action , the agency must inter alia establish by substantial evidence that it gave the appellant a reasonable opportunity to demonstrate acceptable performance . Lee, 115 M.S.P.R. 533, ¶ 5. In determining whether an agency has af forded an employee such an opportunity, relevant factors include the nature of the duties and responsibilities of the employee ’s position, the performance deficiencies involved, and the amount of time which is sufficient to enable the employee with an opportunity to demonstrate acceptable performance . Id., ¶ 32. The administrati ve judge considered these factors. ID at 14-16. The Board has determined that PIP periods of shorter duration were sufficient to afford employees a reasonable opportunity to improve. Towne , 120 M.S.P.R. 239, ¶ 10 (finding that a 7 -week PIP sufficed); Melnick v. Department of Housing & Urban Development , 42 M.S.P.R. 93, 101 (1989) (finding that a 30 -day PIP sufficed), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table). In addition, a s we have stated above, the immediate supervisor’s declaration clearly explains the dutie s to which the appellant was assigned during the PIP. Although the appellant contends that the supervisor’s declaration is “unsupported,” he has failed to identify anything in opposition to the declaration other than his bare assertion that his PIP assign ments differed appreciably from those he had been given prior to the PIP. PFR File, Tab 1 at 13; cf. Betters v. Federal Emergency Management Agency , 10 57 M.S.P.R. 405, 408 -10 (1993) (holding that the agency denied the appellant a reasonable opportunity to improve when it changed his perfor mance plan , first during a detail and then during the PIP). We find the appellant has not provided a sufficient basis to disturb to administrative judge ’s finding that he was afforded a reasonable opportunity to improve . The agency showed by clear and c onvincing evidence that it would have demoted the appellant in the absence of his whistleblowing and other protected activity . ¶16 Finally, the appellant argues that the administrative judge erred in determining that the agency established by clear and convincing evidence that it would have taken the same action regardless of his whistleblowing and other protected activity. PFR File, Tab 1 at 14-17. In an appeal such as this one, the agency’s action may not be upheld if the appellant shows that the decision was based on a prohibited personnel practice. 5 U.S.C. § 7701 (c)(2)(B). The appellant alleged that the agency’s action was in retaliation for hi s having made protected disclosures and for having engaged in other protected activity by disclosing information to the agency’s OIG. IAF, Tab 1 at 6-8, 14, Tab 7 at 5-6, Tab 9 at 55-59, Tab 13 at 2. To retaliate on such a basis is to commit a prohibited personnel practice under 5 U.S.C. § 2302 (b)(8) or (b)(9)(C) . ¶17 Once the agency establishes that it properly took a performance -based action, the appellant then must show by preponderant evidence t hat he engaged in whistleblowing activity under 5 U.S.C. § 2302 (b)(8) or in other protected activity under 5 U.S.C. § 2302 (b)(9) and his d isclosure or other activity was a contributing factor in the agency’s personnel action. 5 U.S.C. § 1221 (e)(1); Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 13 (2015); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013); 5 C.F.R. § 1201.56 (b)(2)(i)(C). If an appellant meets this burden, the burden shifts to the agency to establish by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosure or protected activity. 5 U.S.C. § 1221 (e)(2); Alarid , 122 M.S.P.R. 600, ¶ 14; Shibuya , 119 M.S.P.R. 11 537, ¶ 32. In determining whether the agency has met this burden, the Board will consider all the relevant factors, including the following factors (“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 involved in the decision; and (3) any evidence that the agency takes similar actions against employees who did not engage in whistleblowing or other protected activity, but who are otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. SociaSecurity Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).4 The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010). The Board considers all the e vidence , including evidence that detracts from th e conclusion that the agency met its burden. Soto , 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012) . ¶18 The appellant argues that the administrative judge erred in his analysis of the second and third Carr factors, which examine the agency’ s motive to retaliate and its treatment of similarly situated persons who did not engage in whistleblowing or other protected activity. PFR File, Tab 1 at 16. Regarding the second Carr factor, the administrative judge found that the appellant had not offered any evidence of retaliatory motive. ID at 20. The appellant argues that the administrative judge ignored his history of complaints and disclosures 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 filed 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 alleging that his immediate supervisor failed to ensure that employees properly managed tools and expe ndables. PFR File, Tab 1 at 16. These complaints and disclosures, the appellant argues, reflected poorly on his immediate supervisor and gave him motive to retaliate. Id. ¶19 The appellant’s argument relies on speculation. Indeed, the appellant has identified no evidence in the record that would counter his imm ediate supervisor’s declaration, which dispelled both a personal and professional motive to retaliate . In the declaration, the supervisor flatly denied any retaliatory motive based on the appe llant’s disclosures “because neither of those disclosures reflected badly on me or caused any issues.” IAF, Tab 24 at 12. The supervisor stated that, when the appellant voiced his concerns about the matters disclosed, he “did not mind his taking them up the chain of command or to the Inspector General, because these were his rights.” Id. Moreover, the supervisor explained that he lacked the authority to act on the appellant’s concerns about the management of tools and expendables “since they were based on a misreading of applicable rules” and that he already had acted on issues related to one employee’s absenteeism by the time the appellant reported it. Id. He also explained that he was never disciplined or counseled as a result of the appellant’s contact with OIG and that he was “unaware of any employees who were.” Id.5 ¶20 Regarding the third Carr factor, t he appellant asserts that the administrative judge erred in determining that similar administrative actions had been taken against other poorly performing employees. PFR File, Tab 1 at 16-17. The administrative judge cited other administrative actions that had been taken against poor performers assigned to the appellant’s work unit, which included a PIP 5 We have found that those responsible for the agency’s performance overall may well be moti vated to retaliate even if they are not directly implicated by the disclosures, as the criticism reflects on them in their capacities as managers and employees. Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶ 65; Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28-29. However, there is no evidence in the record to support this theory. 13 pending one employee’s return to duty and letters of warning issued for other employees with significant overrun hours. ID at 20-21. The administrative judge concluded that the agency proved that it had acted when other employees performed at an unacceptable level. Id. The appellant argues tha t the administrative judge’s conclusion is in error because the demotion action affected him financially, unlike the formal warnings issued to other employees. PFR File, Tab 1 at 16-17. The appellant has not, however, identified any evidence that would p lace him on the same footing as those other employees. The record shows that the appellant’s overrun hours were nearly double those of any other employee who accrued overrun hours. The appellant accrued 590.6 overrun hours. IAF, Tab 17 at 27. The neare st comparator, a detailee whose permanent supervisor received a memorandum for the record regarding the overruns, accrued 309.7 overrun hours. Id. Employee 2, referenced supra, accrued 302.2 overrun hours. Id. at 27-28. Employee 3 accrued 267.9 hours. Id. at 28. The appellant’s supervisor placed memoranda for the record in the files of the other employees who had amassed 200 or more overrun hours, and he spoke with the supervisors of employees who had accrued smaller overruns. Id. The record shows t hat the administrative judge weighed the Carr factors in the aggregate and found , based on all the record evidence , that it clearly and convincingly supports the conclusion that the agency would have demoted the appellant in the absence of any whistleblowi ng disclosure or other protected activity. Remand is required in light of Santos . ¶21 Although the administrative judge correctly cited the Board’s precedent setting forth the relevant legal standard for chapter 43 actions at the time he issued his initial decision, s ubsequent to the initial decision, the Federal Circuit held for the first time that , to support such an action, an agency “must justify institution ” of a PIP by showing that the employee’s performance was unacceptable prior to the same . Santos , 990 F.3d at 1360 -61. Therefore, to defend an action under chapter 43, an agency must now also prove by substantial 14 evidence that the appellant’s performance during the appraisal period prior to the PIP was unacceptable in one or more critical elements. See Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 14. The Federal Circuit’s decision in Santos applies to all pending cases , including this one, regardless of when the events took place. Id., ¶ 16. Although the agency here introduced evidence indicating that the appellant was counseled for his performance issues prior to his placement on the PIP , e.g., IAF, Tab 9 at 71, the parties nonetheless were not afforded an opportunity before the administrative judge to address the modified legal standard set forth in Santos . We therefore remand this case for further adjudication of the appellant’s demotion . See Santos , 990 F.3d at 1363 -64 (remanding the appeal for further proceedings under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (re manding the appellant’s chapter 43 appeal because the parties were not informed of the modified standard set forth in Santos ). ¶22 On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence tha t the appellant’s performance prior to the PIP was unacceptable. The administrative judge shall hold a supplemental hearing if appropriate. The administrative judge shall then issue a new initial decision consistent with Santos . If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate h is prior findings on other elements of the agency’s case in the remand initial decision. However, regardless of whether the agency meets its burden, if the argum ent or evidence on remand regarding the appellant’s prior performance affects the administrative judge’s analysis of the appellant’s affirmative defense of whistleblower reprisal, he should address such argument or evidence in his remand initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the auth orities on which that reasoning rests ). 15 ORDER ¶23 For the reasons di scussed above, we grant the appellant’s petition for review and remand this case to the regional office for furth er adjudication consistent with Santos . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BAILEY_BILL_DA_0432_16_0360_I_1_REMAND_ORDER_2004423.pdf	2023-02-21	null	DA-0432	NP
3,510	https://www.mspb.gov/decisions/nonprecedential/WRIGHT_BILLY_NY_1221_17_0078_W_1_REMAND_ORDER_2004469.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BILLY WRIGHT, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER NY-1221 -17-0078 -W-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Christina Quashie , Esquire, Alan Lescht , Esquire, and Jack Jarrett , Esquire, Washington, D.C., for the appellant. Jennifer A. Weger , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymon d A. Limon , Member Tristan L. Leavitt , Member REMAND 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 jurisdicti on. For the reasons discussed below, we GRANT the appellant’s petition for rev iew, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 REVERSE the initial decision, and REMAND the case to the Board’s New York Field Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant holds a Supervisory Criminal Investigator position with the agency’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) , Miami Field Division , Puerto Rico I Field Office in Hato Rey, Puerto Rico. Initial Appeal File (IAF), Tab 12 at 56, 152. The appellant filed a complaint with the Office of Special Co unsel (OSC) against the agency and included a declaration .2 IAF, Tab 10 at 14-34. He provided OSC with a timeline of events in response to OSC’s request for additional information . IAF, Tab 5 at 11-14. In two separate letter s dated December 2 0, 2016, OSC notified the appellant that it had closed the file on his complaint and that he may have a right to file an IRA appeal seeking corrective action from the Board for alleged prohibited personnel practices under 5 U.S.C. § 2302 (b)(8). Id. at 7-9. OSC summarized his complaint as alleging that, after he disclosed that agency officials mismanaged a specific program and that a subordinate employee failed to submit timely credit card statement s and justifications, the agency proposed to both demote and suspend him for 14 days, mitigated the proposed penalty to a 14 -day suspension, reassigned him to a nonsupervisory position, and did not select him for a position. Id. at 8. ¶3 On February 13 , 2017, the ap pellant filed this IRA appeal and requested a hearing. IAF, Tab 1 at 1 -7. In an Order on Jurisdiction and Proof Requirements , the administrative judge informed the appellant that there was a question whether the Board has jurisdiction over h is appeal, ap prised h im of the elements and burden of establishing jurisdiction over an IRA appeal, and ordered h im to file a statement with accompanying evidence on the jurisdictional issue. IAF, Tab 7. 2 The agency does not dispute that the appellant submitted a declaration with his OSC complaint. Compare IAF, Tab 12 at 9 -10, with IAF, Tab 10 at 14 -34. 3 After the appellant filed a n 89-page response, the administrati ve judge ordered him to supplement and clarify his pleading. IAF, Tabs 10 -11. ¶4 In his clarified response , the appellant claimed that he made the following five disclosures : (a) on March 19, 201 3, he emailed the Chief of the Equal Employment O pportunity (EEO) office to request a meeting concerning the subordinate employee ; (b) on or around March 19, 2013, he met with the deciding official for his 14-day suspension and told him that the subordinate employee had not submitted credit card documentation in ov er a year and abused agency regulations related to travel restrictions and credit card limits ; (c) on March 21, 2013, he met with agency officials in the Internal Affairs Division (IAD) regarding the subordinate employee ’s violations of the agency’s credit card policies ; (d) on April 18, 2013, an IAD official emailed Deputy Assistant Director (DAD) B.Z. and the deciding official , forwarding IAD’s conclusion that the subordinate employee had violated agency policies ; and ( e) on September 10, 2013, he met with the Special Operations Division Deput y Chief and DAD T.A. regarding the subordinate employee ’s violations of regulations . IAF, Tab 14 at 4-5. The appellant further asserted that he engaged in the following three protected activities : (a) in August 2015, during a meeting with the proposing official for his proposed demotion and suspension, he discussed his request to transfer offices from Kansas City to San Juan and the subordinate employee ’s regulatory violations ; (b) in his January 30, 20 16 response to the agency’s proposed demotion and suspension , he raised a whistleblower reprisal claim ; and (c) on March 2, 2016, he filed a grievance of the agency’s suspension decision and raised a whistleblower reprisal claim . Id. at 5. In addition, t he appellant alleged that the agency took the following five actions as a result of the disclosures and activities described above: ( a) in July 2013, DAD B.Z. transferred the subordinate employee out of his chain -of-command; ( b) DAD T.A. pressured him to transfer offices from Washington, D.C., to Kansas City; ( c) the agency appointed an employee from the Washington, D.C. , office to serve as the 4 Special Agent in Charge of the San Juan office “over” him ; (d) the agency proposed his demotion and 14 -day suspension ; and ( e) the agency suspended him for 14 days. Id. at 6. ¶5 Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID) at 1, 8. Specifically , she found that the appellant failed to prove exhaustion of his OSC remedies regarding alleged disclosures (a)3 and (d), protected activities (a) -(c), and actions (a) -(c).4 ID at 5 -6. She further found that the appellant proved exhaustion of h is OSC remedies regarding the alleged disclosure s (b) and (c) of the subordinate employee’s improper credit card usage and documentation to the deciding official and IAD in March 2013, and the alleged actions (d) and (e) of his proposed demotion and suspension , and the imposed 14-day suspension . Id. In addition, t he administrative judge found that the appellant made a nonfrivolous allegation that he made a protected disclosure because he alleged that he reasonably believed that he disclosed a violat ion of law, rule, or regulation when he reported the subordinate employee’s violation of credit card policies . ID at 6. She concluded that he failed to nonfrivolously allege that a protected disclosure was a contributing factor in the proposed demotion a nd suspension, or imposed 14 -day suspension. ID at 7. ¶6 The appellant has filed a petition for review challenging the administrative judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1. The agency has filed a response . PFR File, Tab 3. 3 The administrative judge referred to the ap pellant’s alleged disclosure to the deciding official in March 2013 as disclosure (a). ID at 5. This was a typographic error , and the initial decision should instead reference disclosure (b). 4 The administrative judge did not a ddress alleged disclosure (e), and the appellant does not raise it as an issue on review . Petition for Review File, Tab 1; ID at 5. Thus, we decline to consider whether alleged disclosure (e) is within our jurisdiction as a protected disclosure . However, as discussed below, we find that it is relevant to our analysis of the contributing factor criterion . 5 DISCUSSION OF ARGUME NTS ON REVIEW ¶7 To establish jurisdiction in an IRA appeal, an appellant generally must show by preponderant evidence that he exhausted his administrative remedies before OSC and make nonfrivolous allegations5 that (1) he made a disclosu re 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).6 Corthell v. Departmen t of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016). Once an appellant establishes jurisdiction over an IRA appeal, he is entit led to a hearing on the merits of his claim, which he must prove by preponderant evidence. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661 , ¶ 9 (2015). For the following reasons, we reverse the initial decision and remand the appeal for further adjudication because we find that the appellant has established jurisdiction over this IRA appeal.7 The appellant proved by preponderant evidence that he exhausted his OSC remedies regarding alleged disclosures (a) -(d), protected activities (b) and (c), and actions ( d) and (e). ¶8 In his petition for review, the appellant asserts that he exhausted alleged disclosures (a) -(d) and protected activities (a) -(c) before OSC. PFR File, Tab 1 5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). 6 Pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112 -199, 126 Stat. 1465, effective December 27, 2012, Congress expanded the grounds on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661 , ¶ 5 (2015). The alleged action s at issue in the instan t appeal occurred after the effective date of the WPEA. The relevant holdings of pre -WPEA case law that we have cited in this Remand Order have not been affected by the WPEA. 7 We have reviewed the relevant legislation amending the whistleblower protectio n statutory scheme that was enacted during the pendency of this appeal and have concluded that it does not a ffect the outcome of the appeal, nor does it affect the relevant holdings of the case law cited in this Remand Order. 6 at 6. He does not challenge the administrative judge’s finding that only alleged actions (d) and (e), his proposed demotion and suspension, and imposed 14 -day suspension, wer e properly exhausted before OSC. Id. at 10 n.3; ID at 6. Thus, we de cline to address alleged actions (a) -(c). ¶9 Under 5 U.S.C. § 1214 (a)(3), an employee is required to “seek corrective action from [OSC] before seeking corrective action from the Board” through an IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 6 (2014), aff’d , 626 F. App’x 261 (Fed. Cir. 2015). The substantive requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The Board’s jurisdiction over an IRA appeal is limited to those issues that have been previously raised with OSC , but appellant s may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellant s may demonstrate exhaustion of their OSC remedies with evidence regarding their initial OSC complaint and other communications with OSC conce rning their allegations. See Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 8 (2010) . ¶10 Based on our review of the appellant’s submissions to OSC, we find that he proved by preponderant evidence that he exhausted his OSC remedies regarding alleged disclosures (a) -(d), protected activities (b) and (c), and actions ( d) and (e). In his declarat ion and timeline of events submitted to OSC , the appellant claimed , in relevant part, the following: on March 18, 2013, he emailed the Chief of the EEO office regarding the subordinate employee;8 in March 2013, he met with the deciding official and disclo sed the subordinate employee’s policy violations; on March 21, 2013, he met with IAD officials regarding the subordinate employee’s credit card usage and documentation ; on April 18, 2013, he received an email from IAD referring the matter regarding the sub ordinate 8 The appellant identified the Chief of the EEO office as “ATF counsel. ” IAF, Tab 5 at 12. 7 employee to management ; on December 1 , 2015, the proposing official proposed his demotion and 14-day suspension; on January 25, 2016, he provided to the deciding official an oral and written response to the proposed demotion and suspension, and he alleged reprisal for disclosing the subordinate employee’s violation of agency regulations; on February 12, 2016, the deciding official issued a decision to suspend him for 14 days ; and on March 2, 2016, he filed a grievance of his suspension and raised a whistleblower reprisal claim . IAF, Tab 5 at 1 2-14, Tab 10 at 2 9-30, 32 -34. Thus, we find that the appellant provided OSC with a sufficient basis to pursue an investigation into his claim that the agency retaliated against him for disclosing potential violations of 5 U.S.C. § 2302 (b)(8) and (b)(9)(A)(i), (B), (C), or (D). See Briley v. National Archives and Records Administration , 236 F.3d 1373 , 1378 (Fed. Cir. 2001) (finding that the appellant proved exhaustion when her letters to OSC contained th e core of her retaliation claim, giving OSC a sufficient basis to pursue an investigation).9 ¶11 Further , we agree with t he administrative judge ’s finding that the appellant failed to prove exhaustion regarding alleged protected activity (a) , that he met with the proposing official in A ugust 2015 regarding his request to transfer to the San Juan office and discussed the subordinate employee’s regulatory violations . ID at 5 -6; see Miller , 122 M.S.P.R. 3 , ¶ 10 (finding that the appellant failed to prove that he sought corrective action with OSC regarding new allegations of protected activity that were separate from the core of his retaliation claim described in his submissions to OSC ). Although the appellant disputes that finding on review, t here is no evidence that he informed OSC that he discussed 9 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 . 8 the subordinate employee’s regulatory violations with the proposing official in August 2015 . PFR File, Tab 1 at 8. The appellant did not allege meeting the proposing official in August 2015 in his initial OSC complaint or timeline of events , nor was a meeting described in OSC’s letters . However, t he appellant asserted in his declaration to OSC that, on August 20, 2015 , he had a meeting with the proposing official regarding opportunities for a lateral reassignment to San Juan and that the proposing official stated his intention to facilitate further conversation on the matter with other agency officials . IAF, Tab 10 at 32. We find that this assertion failed to give OSC a sufficient basis to pursue an investigation of potential violations of 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i), (B), (C), or (D ).10 The appellant has made a nonfrivolous allegation that he made protected disclosure s that were contributing factor s in personnel action s. ¶12 The next jurisdictional inquiry is whether the appellant has made a nonfrivolous allegation that he made a protected di sclosure or engaged in a protected activity that was a contributing factor in a personnel action. See Corthell , 123 M.S.P.R. 417 , ¶ 8. A nonfrivolous allegation of a protected disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced one of the categories of wrongdoing spe cified in 5 U.S.C. § 2302 (b)(8). Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 6 (2016) . ¶13 To satisfy the contributing factor criterion at the jurisdictional stage, an appellant only need raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Id., ¶ 13. Under the knowledge -timing test, an 10 Even assuming that the appellant proved exhaustion regarding alleged protected activity (a), we find that he has failed to make a nonfrivolous allegation that activity (a) constitutes protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). P FR File, Tab 1 at 8 -9; IAF, Tab 14 at 5. 9 appellant may nonfrivolously allege that the disclosure or activity was a contributing factor in a personnel action through circumstanti al evidence, such as evidence that the official who took the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. See 5 U.S.C. § 1221 (e)(1); Salerno , 123 M.S.P.R. 230 , ¶ 13. In addition to the knowledge -timing test, there are other possible ways for an appellant to satisfy the contributing factor criterion . See Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶¶ 14-15 (2012) (explaining that other evidence relevant to the contributing factor criterion includes the strengt h or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether those officials had a desire or motive to retaliate). ¶14 Here, the appellant does not dispute, and we find no reason to disturb, the administrative judge’s finding that alleged disclosure (a) , his email to the Chief of the EEO office requesting a meeting , is not a protected disclosure. PFR File, Tab 1 at 7; ID at 5 n.5; IAF, Tab 14 at 7 -10. Further, we agree with the administrative judge’s finding that the appellant made a nonfrivolous allegation that he reasonably believed he disclosed a violation of law, rule, or regulation when he reported the subordinate employee’s alleged violation of credit card policies to the deciding official and IAD officials in March 2013 . ID at 6 ; see Rusin v. Department of the Treasury , 92 M.S.P.R. 298 , ¶¶ 2-3, 18 -19 (2002) (finding that the appellant nonfrivolously alleged that he reasonably believed that his disclosure of his supervisor’s improper credit card purchases evidenced a violation of a rule under 5 U.S.C. § 2302 (b)(8)) . Thus, we find that the appellant has nonfrivolously alleged that disclosures (b) and (c) are protected disclosures under 5 U.S.C . § 2302 (b)(8)(A)(i). Moreover , we find no reason to disturb the administrative judge’s finding that the appellant failed to make a nonfrivolous allegation that disclosure (d), an email from an IAD official forwarding IAD’s 10 conclusion that the subordinate employee violated agency policies, is a protected disclosure . PFR File, Tab 1 at 7 -8; ID at 5 n.5 . The appellant’s submission of the email chain at issue shows that he received , but did not send, an email . IAF, Tab 10 at 36-39. Thus, we fin d that he has failed to nonfrivolously allege that he made a communication or transmission meeting the definition of a “disclosure” under 5 U.S.C. § 2302 (a)(2)(D). ¶15 Further, we find that alleged pro tected activity (c), filing a grievance that raises a whistleblower reprisal claim , constitutes a nonfrivolous allegation of protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i) . However, because the appellant filed an administrative grievance after the agency proposed his demotion and 14 -day suspension and imposed his 14-day suspension , his protected activity could not have been a contributing factor to those action s. IAF, Tab 10 at 32 -34, Tab 12 at 51 -56, 97 -102, Tab 15 at 4 -6; see Bradley v. Department of Homeland Security , 123 M.S.P.R. 547 , ¶ 8 n.3 (2016) (affirming the administrative judge’s finding that the appellant’s alleged disclosures that occurred after the personnel actions at issue could not have been a contributing factor in those actions) . In addition, we find that alleged actions (d) and (e) a re personnel actions because demotions and 14-day suspension s are “action[s] under chapter 75 of [Title 5 ] or other disciplinary or corrective action [s].” 5 U.S.C. § 2302 (a)(2)(A)(iii). ¶16 Regarding alleged protected activity (b), we find that the appellant has failed to nonfrivolously allege that providing an oral and written reply to the agency’s proposed demotion and 14 -day suspension constitutes protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). PFR File, Tab 1 at 8 -9. However, we find that the appellant has made a nonfrivolous allegation that he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) (A)(i) of a violation of the Whistleblower Protection Act (WPA), as amended , by raising a whistleblower reprisal claim in his oral and written reply to the proposed demotion and suspension. IAF, Tab 12 at 57, 94-95; cf. Pulcini v. Social Security 11 Administration , 83 M.S.P.R. 685, ¶ 8 (1999) (explaining that, at the jurisdictional stage of an IRA appeal, an appellant need not correctly label a category of wrongdoing under 5 U.S.C. § 2302 (b)(8)), aff’d , 250 F.3d 758 (Fed. Cir. 2000) (Table) . We further find that the appellant has ma de a nonfrivolous allegation of a contributing factor between his disclosure of a WP A violation and his suspension through the knowledge -timing test . The deciding official stated in his February 2016 decision to impose the 14 -day suspension that he consid ered the appellant’s oral and written replies , and the deciding official made his decision only 1 month after the appellant presented his replies in January 2016 . IAF, Tab 15 at 4 -6. ¶17 In contrast, we find that the appellant has failed to meet the knowledge -timing test regarding alleged disclosures (b) and (c) because more than 2 ½ years passed between when the appellant allegedly made those disclosures in March 2013 , and when the agency proposed his demotion and suspension in December 2015 and decided to su spend him in February 2016 . IAF, Tab 12 at 97 -102, Tab 15 at 4-6; see Salerno , 123 M.S.P.R. 230 , ¶ 14 (recognizing that the Board has held that a personnel action taken within approximately 1 to 2 years of an appellant’s disclosures satisfies the timing component of the knowledge -timing test) . However, the knowledge -timing test is not the only way for an appellant to satisfy the con tributing factor criterion. Dorney , 117 M.S.P.R. 480 , ¶ 14. ¶18 Here, the subordinate employee filed an EEO complaint against the appellant in August 2013 asserting, among other things, that , in late March 2013, he reported her to IAD for misuse regarding credit card purchases and travel requests. IAF, Tab 12 at 105, 1 31. T he agency’s Complaint Adjudication Office (CAO) issued a de cision on her complaint and found , among other things, that the appellant subjected her to a hostile work environment by referring her for an IAD investigation. Id. at 140, 1 42. Based on the CAO decision, t he agency proposed the appellant’s demotion and suspension and decided to impose his 14 -day 12 suspension . IAF, Tab 12 at 97 -101, Tab 15 at 4 -5. In particular, the proposal notice quoted the part of the CAO decision discussing the appellant’s referral of the subordinate employee to IAD. IAF, Tab 12 at 98. Moreover, the appellant explicitly raise d his report of the subordinate employee’s expenditures and travel spending to I AD as a protected disclosure in his written reply to the proposal notice , which the deciding official considered in making his decision . IAF, Tab 12 at 94 -95, Tab 15 at 4 . Based on the above , we find that the appellant has made a nonfrivolous allegation that both the deciding and proposing officials gave weight to alleged disclosure (c) to IAD . See Dorney , 117 M.S.P.R. 480 , ¶ 15 (finding that, any weight given to a whistleblower disclosure, either alone or in combination with other factors, can satisfy the contributing factor criterion ). We further find that the appellant has made a nonfrivolous allegation that the deciding offici al had a motive to retaliate against him based on his assertions that the deciding official was involved with overseeing the program for which the subordinate employee served as a Program Manager and that DAD T.A. told him that he had upset management officials because he had expressed his opinion that the subordinate employee’s failure to follow agency regulations reflected a failure of management. IAF, Tab 5 at 12, Tab 10 at 30 -31, Tab 12 at 60, 68-69; see Dorney , 117 M.S.P.R. 480 , ¶ 15. Therefore, we find that the appellant has made a nonfrivolous allegation that alleged disclosures (b) and (c) were contributing factors in his proposed demotion and suspension, and imposed suspension . ¶19 Accordingly, we find that the appellant has established jurisdiction over his claim that the agency proposed his demotion and suspension and imposed his 14-day suspension for disclosing the subordinate employee’s credit card usage and documentation to the deciding official and IAD, and for d isclosing a violation 13 of the WP A in his oral and written reply . Thus, we remand this IRA appeal for a hearing on the merits.11 ORDER ¶20 For th e reasons discussed above, we remand this ca se to the field office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 11 An issue that the administrative judge may need to address on remand is whether the appellant’s disclosures were made during the normal course of his duties . Section 101 of the WPEA provided that disclosures “mad e during the normal course of duties of an employee” are protected if the agency “took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.” This provision was initially codified a t 5 U.S.C. § 2302 (f)(2) . On October 26, 2017, Congress enacted the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115 -73, 131 Stat. 1235, which recodified the pr ovision at 5 U.S.C. § 2302 (e)(2). Section 1097 of the National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115 -91, 131 Stat. 1283 (2017) (NDAA for 2018) , amended and recodified the provision at 5 U.S.C. § 2302 (f)(2) . The NDAA for 2018 amendment to 5 U.S.C. § 2302 (f)(2) applies retroactively. Salazar v. Department of Veterans Affairs , 2022 MSPB 42, ¶¶ 15-21. The administrative judge should consider what effect, if any, the aforementioned pieces of legislation ha ve on this appeal.	WRIGHT_BILLY_NY_1221_17_0078_W_1_REMAND_ORDER_2004469.pdf	2023-02-21	null	NY-1221	NP
3,511	https://www.mspb.gov/decisions/nonprecedential/HILL_CHRISTINE_L_DC_0752_16_0744_I_2_FINAL_ORDER_2004487.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTINE L. HILL, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-0752 -16-0744 -I-2 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant. Louise A. Schmidt , Esquire, Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal and denied her affirmative defense of retaliation for engaging in protected equal employment opportunity (EEO) activity. On petition for review, the appellant challenges the administrative judge’s findings that the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 agency proved its sole charge of absence without leave (AWOL) and that she failed to prove her EEO retaliation affirmative defense. 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. Except as expressly MODIFIED to clarify the analysis of the AWOL charge , we AFFIRM the initial decision. The administrative judge properly sustained the AWOL charge. ¶2 To prove an AWOL charge, an agency must demonstrate that the employee was absent with out authorization and, if the employee requested leave, that the request was properly denied . Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 28 n.5 (2015) , overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23 -25. Whe n an employee has requested leave to cover her absences, an AWOL charge will be sustained only if the agency establishes that her requests were properly denied. Id., ¶ 28. If the employee requested leave without pay (LWOP) for the periods when she was pl aced in an AWOL status, the Board will examine the record as a whole to determine if the denial of LWOP was reasonable under the circumstances. Id. Ordinarily, when an employee who is incapacitated for duty has exhausted all of her leave, an 3 agency may p roperly deny her LWOP request whe n there is no foreseeable end to her absences and when those absences are a burden on the agency. Id., ¶ 29. ¶3 In addition, contrary to the appellant’s assertion, an agency is not required to provide an employee with notic e of her leave status. Cresson v. Department of the Air Force , 33 M.S.P.R. 178 , 181 (1987); Petition for Review (PFR) File, Tab 5 at 6 . Rather, it is the employee who is responsible for requesting leave and providing the agency with the necessary supporting medical documentation. Cresson , 33 M.S.P.R. at 181. An appellant cannot assume that an agency has approved leave in the absence o f any notification on a leave request; to do so would be inconsistent with the appellant’s responsibility for requesting leave and keeping the agency informed about her availability for work. See Johnson v. General Services Administration , 46 M.S.P.R. 630, 634, aff’d , 944 F.2 d 913 (Fed. Cir. 1991) (Table) . ¶4 The agency informed the appellant on March 2, 2016, that her failure to request —and ob tain—approval for leave after March 18, 2016, or her failure to report to duty after March 18 , 2016, may result in her being coded AWOL. Hill v. Department of Defense , MSPB Docket No. DC -0752 -16-0744 -I-1, Initial Appeal File (IAF) , Tab 8 at 76. Although the appellant sent emails on March 15 and March 18, 2016, seeking an extension of her leave under the Family and Medical Leave Act of 1993 (FMLA) from March 21 through April 22, 2016, the agency did not receive them because they were blocked by its spam fi lter, and neither party was alerted to the delivery failure . IAF, Tab 8 at 79 -80, Tab 14 at 37; Hearing Transcript , Day 2 (HT 2) at 6 -9, 16 -18 (testimony of the IT Division Chief for the Department of Defense Education Activity Americas ). Indeed, in an email dated April 29, 2016, the appellant admitted that she had not received a response from the agency regarding her March 15 and March 18 requests, and thus she resent them. IAF, Tab 8 at 147. ¶5 Here, the administrative judge properly found that the appellant was absent without authorization from March 21 through May 12, 2016. Hill v. Department 4 of Defense , MSPB Docket No. DC -0752 -16-0744 -I-2, Appeal File, Tab 21, Initial Decision (ID) at 2 -12. As to her absence without authorization from March 21 through April 22, 2016, we find that th e appellant’s failure to follow -up on her request to extend her FMLA leave until April 29, 2016, seven days after the requested extension period had passed, is inconsistent with her responsibility for requesting leave and that the administrative judge , therefore, properly found that the agency proved that the appellant was AWOL from March 21 through April 22, 2016 . ID at 11; see Johnson , 46 M.S.P.R. at 634. Nevertheless, as the deciding official noted i n the decision letter, the appellant had 3 days of her 60-day entitlement to FMLA leave remaining when the agency removed her. IAF, Tab 8 at 155. Therefore, even assuming that the agency was required at t he time that it ultimately received her request to retroactively approve those remaining 3 days of leave , the administrative judge properly found that the leave would only carry her until March 24, 2016. ID at 12. Accordingly , we affirm the administrative judge’s alternate finding that the agency proved by preponderant evidence that , even if the agency was required to retroactively approve her remaining FMLA leave, the appellant still was AWOL from March 24 through April 22, 2016. Id. ¶6 As to her absence without leave from April 25 through May 12, 2016, we find the agency’s decision not to approve her request for an extension of leave during this time period reasonable under the circumstances. See Savage , 122 M.S.P.R. 612, ¶¶ 28-29. Significantly, the administrative judge credited the testimony of the appellant’s supervisor that her fourth grade teacher position w as “mission essential” and that her continued absence had a “tangible, deleterious impact” on the fourth grade students. ID at 15. Moreover, at the time of her request, the appellant was living in Virginia and had never even visited her duty station in N orth Carolina , she had been continuously absent from duty for nearly 5 mo nths, including approximately 1 month of AWOL , and her most recent doctor’s evaluation that she provided the agency, dated April 20, 2016, indicated that she needed to continue her tr eatment for at least an additional 7 -8 weeks. 5 IAF, Tab 8 at 81, 85; HT 2 at 115, 202 -03 (testimony of the appellant) . Accordingly, we find that the agency proved the AWOL charge for the appellant’s absence without authorization from April 25 through May 12, 2016. See, e.g. , Young v. U.S. Postal Service , 79 M.S.P.R. 25, 39 (1998) (finding that a denial of LWOP for the period of absence was reasonable when her absence was a burden to the agency and there was no foreseeable end to her absence after having been continuously absent from duty for nearly 7 months). These two periods of AWOL , spanning from March 24 through May 12, 2016, combine for a total of 25 workdays. Under the circumstances, in which the administrative judge found that the appellant , at a minimum, was AWOL on 25 of the specified 28 workdays, we find that the agency proved th e essence of its charge.2 See Hicks v. Department of the Treasury , 62 M.S.P.R. 71 , 74 (1994), aff’d , 48 F.3d 1235 (Fed. Cir. 1995) (Table). NOTICE OF APPEAL RIGH TS3 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 2 The administrative judge also found in the alternative that, even assuming that the appellant may have been deemed to have justifiably relied on the agency’s past record of somewhat permissive and occasionally retroactive approval of past requests for FMLA leave, no such misapprehension could suffice to explain her failure to report after May 3, 2016, when the agency confirmed by email that her FMLA leave had been exhausted and that she had been car ried in an AWOL status since March 21, 2016. ID at 12. In so finding, he implicitly discredited the appellant’s assertion that she did not receive the May 3, 2016 email until May 16, 2016, but he did so without explanation. PFR File, Tab 5 at 17. Never theless, as explained above, we find that the administrative judge properly sustained the AWOL charge from March 24 through May 12, 2016. Accordingly, we vacate this alternate finding. 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 forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims onl y, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 8 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 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. 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HILL_CHRISTINE_L_DC_0752_16_0744_I_2_FINAL_ORDER_2004487.pdf	2023-02-21	null	DC-0752	NP
3,512	https://www.mspb.gov/decisions/nonprecedential/CLARK_SHEILA_DC_0752_13_0661_I_1_FINAL_ORDER_2004634.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHEILA CLARK, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC-0752 -13-0661 -I-1 DATE: February 21, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Phillip R. Kete , Esq uire, Chesapeake Beach, Maryland, for the appellant. Ashley Darbo , Esquire, and Melissa Williams , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the inappropriate conduct charge, did not sustain the lack of candor charge, found that she did not prove any of her affirmative defenses, and upheld 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 removal penalty. 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 proce dures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We MODIFY the initial decision to clarify the allegations of inappropriate conduct , which we sustain , and to supplement the administrative judg e’s analysis of the appellant’s claims of a due process violation , prohibited discrimination, and reprisal for whistleblowing disclosures . We VACATE the administrative judge’s penalty analysis, but we FIND that the removal penalty was reasonable based on the sustained misconduct. Except as expressly MODIFIED by this Final Order, we AFFIRM the initial decision. BACKGROUND ¶2 The relevant background information, as recited in the initial decision, is gene rally undisputed. Initial Appeal File (IAF), Tab 91, Initial Decision (ID). The appellant was a Senior Executive Service (SES) employee in the Chief Component Human Capital Officer (CCHCO) position at the Federal Emergency Management Agency (FEMA). ID at 1-2. The agency initiated an investigation of the appellant in response to an anonymous allegation that she had engaged in prohibited per sonnel practices. ID at 2; IAF, Tab 60 at 40-41. As a result of this 3 investigation, the agency determined that the appellant misused her position to help a friend obtain employment at FEMA and provided him with personally identifiable information of FEMA employees. ID at 2; IAF, Tab 19 at 15-16, 134-35. ¶3 Effective May 6, 2013, the agency removed the appellant from h er CCHCO position based on charges of inappropriate conduct and lack of candor. ID at 2; IAF, Tab 6 at 39-52. The appellant filed a Board appeal, requested a hearing, and asserted several affirmative defenses. ID at 2; IAF, Tabs 1, 57, 65 -68. The appel lant subsequently withdrew her hearing request. ID at 2-3; IAF, Tab 75 at 2-3. The administrative judge issued an initial decision that sustained the inappropriate conduct charge (but not all of the allegations therein), did not sustain the lack of cando r charge, found that the appellant did not prove any of her affirmative defenses, and concluded that the removal penalty was reasonable. ID at 3-34. ¶4 The appellant has filed a petition for review, the agency has filed a response, and the appellant has filed a reply. Petition for Review (PFR) File, Tabs 4, 7 -8. On review, the appellant challenges many of the admi nistrative judge’s findings and conclusi ons.2 DISCUSSION OF ARGUME NTS ON REVIEW The agency proved the inappropriate conduct charge. ¶5 In the single specification of this charge, the agency made the following allegations, among others, against the appellant: (1) she had a personal relationsh ip with the friend in question ; (2) she sought out a position for her friend in the month or so preceding the March 14, 2011 investigator vacancy announcement by alleging that her office had a backlog of about 80 -100 2 Neither party challenges the administrative judge’s conclusion that the agency did not prove the lack of candor charge. We affirm the administrative judge’s finding in this regard. 4 investigations; (3) she assisted her fr iend in drafting his résumé , contacted agency officials on his behalf to address prior misconduct issues , and provided her friend with résumé s of other FEMA investigators;3 (4) she informed her friend that a vacancy announcement for the investigator position was going to be issued; (5) she learned that her friend was going to be on the merit promotion certificate and directed a Human Resources Sp ecialist not to issue the other delegated examining unit (DEU) certificate; (6) she viewed the certificate of eligibles for the position to which her friend applied; (7) she sat on the selection panel that interviewed candidates for the investigator position without disclosing to the other panel members, her supervisor, or the selecting official he r prior efforts to assist her friend or her relationship with him; and (8) she provided her friend with an advantage not authorized by law, rule, or regulation. IAF, Tab 6 at 43-44.4 ¶6 In the initial decision, the administrative judge found that the appel lant and her friend shared a “close personal relationship” evidenced by the volume and content of emails between them and the “significant” time and effort that the appellant expended to assist him in his employment efforts. ID at 5-7; IAF, Tab 19 at 9 (the agency’s report of investigation “conservatively” estimated that the appellant and her friend “had several hundred [email] messages that were personal in nature,” which included messages on weekdays and weekends, start ing as early as 5:20 a.m. and end ing as late as 2:22 a.m.), 28 (the appellant stating in an email to her friend that she “can’t seem to get over ” him). We agree. ¶7 The administrative judge noted that it was not per se misconduct for the appellant to assist her friend with his résumé , but the misconduct arose from her participation in the interview and selection process of an applicant for whom she 3 The administrative judge concluded that the agency did not prove that the appellant provided her friend with résumés of other FEMA investigators. ID at 13 n.5. Neither party challenges this conclusion on review. 4 Although the proposal notice stated that the relevant events oc curred in 2012, this appears to be a typographical error because most of the relevant events actually happened in 2011. 5 had demonstrated romantic feelings , coupled with her assistance in drafting and editing his résumé to submit for employment at the agency . ID at 12-20. The administrative judge therefore sustained the inappropriate conduct charge. ID at 20. ¶8 We have considered the appellant’s argument that the agency “expressly” found that she violated 5 C.F.R. § 2635.702 , which prohibits a Federal employee from using his or her public office for private gain, but the administrative judge did not find the appellant “guilty” of this offense. PFR File, Tab 4 at 12-14. In resolving the issue of how a charge should be construed and what elements require proof, the Board examines the structure and language of the proposal and decision notices. Boltz v. Social Security Administration , 111 M.S.P.R. 568, ¶ 16 (2009). ¶9 Based on our review of the proposal and decision letters, we find that the agenc y’s inappropriate conduct charge did not allege that t he appellant violated 5 C.F.R. § 2635.702 . The proposal no tice contained two charges , entitled “inappropriate conduct” and “lack of candor ,” and included a narrative for each and a lengthy “Background” section, which discussed various aggravating factors, including the proposing official’s belief that the appellant’s conduct constituted a violation of 5 C.F.R. § 2635.702 . IAF, Tab 6 at 39-52. The proposing official , though, does not cite to or otherwise reference 5 C.F.R. § 2635.702 in the narrative porti on of the inappropriate conduct charge. ¶10 In the decision letter , the deciding official discussed the “inappropriate conduct ” charge and the “lack of candor ” charge under separate headings. Id. at 39-40. However, apart from the headings, the organization of the decision letter is confu sing. For example, the deciding official stated under the “lack of candor” heading that she sustained the removal based on her decision to sustain the inappropriate conduct charge. Id. at 40. Under the “inappropriate conduct” heading, the deciding offic ial noted various aggravating factors, including the seriousness of the offense, the appellant’s failure to take responsibility for her 6 actions, her conclusion that the appellant’s conduct constituted a violation of 5 C.F.R. § 2635.702 , and the fact that she no longer had confidence in the appellant’s ability t o perform her assigned duties. Id. ¶11 Having reviewed the structure and content of the proposal and decision letters , we conclude that the agency did not include , as a n allegation of the inappropriate conduct charge , that the appellant’s conduct violated 5 C.F.R. § 2635.702 . Instead, we find that the agency includ ed the allegation that her conduct violated this regulation as an aggravating factor . Accordingly, the agency was not required to establish that the appellant violated this regulation to prove the inappropriate conduct charge . ¶12 The appellant also asserts that there is “zero evidence” to support the administrative judge’s conclusion that she padded the payroll and manipulated her friend’s selection. PFR File, Tab 4 at 14-30. In support of this assertion, she makes the following contentions: (1) she did not cause the posting for the investigator position or the decision to fill a se cond investigator position; (2) she did not restrict the number of appli cants to be considered; and (3) her service on the interview panel without inf orming the other panel members or the selecting official of her relationship with her friend did not provide him an unfair advantage. Id. ¶13 We have considered the appellant’s assertion that the agency did not prove its allegation that, in the “month or tw o preceding the [March 14, 2011] vacancy announcement,” she “sought out a position for ” her friend within the Office of th e Chief Security Officer (O CSO) “by alleging to OC SO that [her] office had a backlog of approximately 80 -100 investigations. ” PFR Fil e, Tab 4 at 15; IAF, Tab 6 at 43. Although this portion of the proposal notice focused on events that occurred before the vacancy announcement was issued, t he administrative judge appeared to discuss the appellant ’s March 29, 2011 email —which was sent after the vacancy announcement closed —to support her conclusion that the agency proved this allegation . ID at 8-9. Because this email was not sent in the “month 7 or two preceding” the vacancy announcement, we vacate the administrative judge ’s reliance on this email in her analysis of this allegation .5 ¶14 The administrative judge acknowledged that the appellant denied falsifying backlog information to seek out a position for her friend , but she found the agency’s evidence more credible on this point because the appellant’s statements were inconsistent . ID at 9. The administrative judge further found that the agency proved by preponderant evidence that the appellant emailed OCSO officials about the investigation backlog to improve the chances for creating a vacancy for wh ich her friend could apply. Id. ¶15 When an administrative judge’s findings are not based on observin g witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its own judgment on credibility issues. Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002). Here, however, the consistency of the appellant’s statements is a valid factor to consider in assessing witness credibility. Hillen v Department of the Army , 35 M.S.P.R. 453, 458 (1987). Moreover, there is evidence that the appellant provided backlog information of a questionable nature to agency officials before the vacancy announcement was issued. For example , the Acting Deputy Chief Security Officer ( CSO ) stated in a sworn statement that , in February 2011, the appellant called for a meeting with him and the CSO to discuss the “backlog” of “approximately 80” human resources cases that needed an investigation. IAF, Tab 19 at 111, 114. Additionally, the Acting Deputy CSO and CSO stated in their sworn state ments that it was the appellant’s decision to create the investigator positions. Id. at 91, 114. Finally , the appellant admitted in her oral reply that, after reviewing a March 7, 2011 report, she emailed the Acting Deputy CSO and CSO and informed them t hat she had a “backlog” and 5 Because we do not rely on the March 29, 2011 email in our analysis, we need not address the appellant’s arguments on review regardin g the effect, if any, of this email on the agency’s decision to hire a second investigator under the vacancy announcement. PFR File, Tab 4 at 17-19. 8 needed “help.” IAF, Tab 14 at 39-40. Based on the appellant’s inconsistent statements regarding whether she provided backlog information to agency officials (as discussed in the initial decision ), coupled with the agency ’s evid ence that corroborates the time line in question, we find that it was more likely than not that the appellant provided backlog information befo re the vacancy announcement was issued. ¶16 We also have considered the appellant’s contention that the adminis trative judge suggested that she (the appellant) had an ulterior motive because she waited until after her friend was hired to tell the selecting official that she did not have a backlog of cases . PFR File, Tab 4 at 21; ID at 8-9. The record reflects tha t the selections for the investigator position were made on April 14, 2011, the appellant’s friend was presented with the agency’s offer on or around May 12, 2011, the appellant advised the selecting official that she did not have a backlog on or after May 18, 2011, and her friend’s employment began on June 5, 2011. IAF, Tab 19 at 113, 126, 129, Tab 23 at 107, Tab 82 at 89. Given these facts, even if the administrative judge somehow erred in her characterization of the relevant chronology , her error is not prejudicial to the appellant’s substantive rights and does not provide a basis for reversing the initial decision . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). ¶17 On review, the appellant contends that her participation in the interview and selection panel did not favor her friend because the other two panelists would have recommended him for the other vacancy , and thus he was not given an advantage as described in the proposal n otice. PFR File, Tab 4 at 25-28. We disagree with the appellant’s narrow characterization of the relevant language . Rather, we find that the agency’s allegation in the proposal notice —that the appellant’s “course of conduct was unfair to the other applicants for the position, as it provided [ her friend ] with an advantage not authorized by law, ru le, or regulation” —refers to the en tirety of her course of conduct and not merely her 9 decision to sit on the selection panel.6 IAF, Tab 6 at 44. The proposal notice stated in the alternative that, even if the appellant did not intend to give her friend such an advantage, her actions “clearly demonstrate a profound lack of judgment.” Id. We agree with the agency that the sustained misconduct evidences poor judgment on the appellant’s part . See, e.g. , Drayton v. Equal Employment Opportunity Commission , 11 M.S.P.R. 43, 44, 46 (1 982) (concluding that the appellant exhibited a “serious lack of judgment” when he twice used a Government credit card to pay for gasoline for his personal vehicle). We therefore sustain this allegation. ¶18 We need not address the appellant’s argument that she did not restrict the number of applicants to be considered or otherwise direct anyone not to issue the DEU certificate. PFR File, Tab 4 at 22-24. Even if we were to find that the agency did not prove these allegation s, we still would sustain the inappropriate conduct charge. See, e.g. , Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) (finding that w hen more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge ). For the reasons discussed below, infra ¶¶ 33-43, we further find that the rem oval penalty is warranted based on the sustained allegations of the inappropriate conduct charge . 6 The proposal notice alleged that the appellant did not advise “other panel members, [her] supervisor, or the selection authority of [her] efforts to assist [her friend] with his résumé or that she had a social relationship with him that went beyond being prior coworkers.” IAF, Tab 6 at 44. The appellant asserts on review that the decision letter did not mention withholding such information from the selecting official or her supervisor , and the administrative judge improperly “added [this allegation] back into the charge.” PFR File, Tab 4 at 25-26 (citing ID at 17). Regardless of whether we consider the a ppellant’s failure to disclose this information to the other panel members, her supervisor or the selecting official, we would still sustain the inappropriate conduct charge based on the totality of the misconduct as described herein. 10 The appellant did not prove her affirmative defenses. ¶19 The appellant asserted various affirmative defenses, including harmful procedural error, a due proce ss violation, discrimination, and reprisal for whistleblowing disclosures.7 As set forth below, w e have considered her arguments concerning these defenses, but a different outcome is not warranted. Due process and harmful procedural error ¶20 On petition f or review, the appellant renews her argument that the agency violated her right to due process by withholding certain favorable evidence during the removal process , i.e. , a December 10, 2012 supplemental report of investigation that included a document sta ting that the “Program requested [Merit Promotion/Noncompetitive] certs[sic] only.” PFR File, Tab 4 at 30-31; IAF, Tab 25 at 114-15. She argues that had she known of this evidence prior to her removal, she could have brought it to the deciding offic ial’s attention. PFR File, Tab 4 at 31. ¶21 We observe t hat the appellant is not arguing that the deciding official considered ex parte information in reaching her decision. Cf. Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999) (discussing the due process implications of a deciding official’s consideration of ex parte information). Instead, she is arguing that the a gency withheld certain exculpatory information from both her and the deciding official . PFR File, Tab 4 at 30-31. In Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538 -39, 546 -48 (1985), the Supreme Court held that a tenured public employee has a constitutionally protected property interest in ongoing public employment and that an agency may not deprive such an employee of his property interest without providing him due process of law, including the right to advance notice of the charges against him, an explanation of the agency’s evidence, and an opportunity 7 The appellant doe s not challenge the administrative judge’s conclusion that she did not prove her disability discrimination claim. ID at 27. We affirm the administrative judge’s finding in this regard. 11 to respond. However, c ourts have consistently declined to extend the holding in Loudermill to similar fact patter ns, and we see no basis to take a different approach . E.g., Yee v. Bureau of Prisons , 348 F. App’x 1, 2 (5th Cir. 2009); Ashton v. Whitman , 94 F. App’x 896, 900 -02 (3rd Cir. 2004); Lee v. Hutson , 810 F.2d 1030 , 1030 -34 (11th Cir. 1987) ; National Labor Relations Board v. Nueva Engineering, Inc. , 761 F.2d 961 , 969 (4th Cir. 1985) . ¶22 Likewise, f or the reasons described in the initial decision, we agree with the administrative judge that, even if the agency committed a procedural error in this regard , it was not harmful because the agency would have removed th e appellant in the absence of this error . ID at 29-30; Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681, 685 (1991). Repris al for whistleblowing disclosures8 ¶23 In the initial decision, the administrative judge determined that the appellant made protected whistleblowing disclosures that were a contributing factor in the agency’s decision to remove her. ID at 22-24.9 The administrative judge determined, however, that the agency proved by clear and convincing evidence that it would have removed her in the absence of her whistleblowing disclosures. ID at 24-25. On review, the appellant briefly challenges the administ rative judge’s analysis of the clear and convincing standard . PFR File, Tab 4 at 37. ¶24 In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of 8 The administrative judge appeared to analyze this claim without r eferencing the Whistleblower Protection Enhancement Act of 2012 (WPEA). Pub. L. No. 112-199, 126 Stat. 1465. However, the appellant’s removal occurred after the December 27, 2012 effective date of the WPEA. WPEA, § 202. Although not raised by the appel lant on review, we have considered the WPEA amendments as they pertain to this case, but they do not warrant a different outcome. 9 Because neither party challenges the administrative judge’s determination that the appellant satisfied her prima facie bur den, ID at 22-24, we affirm it herein. 12 whistleblowing disclosu res or protected activity,10 the Board will typically consider the strength of the agency’s evidence in support of its action, the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision, and a ny evidence that the agency takes similar actions against employees who are not whistleblowers or who did not engage in protected activity but who are otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11; see Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) .11 ¶25 The appellant only appears to challenge the administrative judge’s evaluation of the first Carr factor involving the strength of the agency’s evidence. PFR File, Tab 4 at 37; ID at 24. For example, the appellant states that some of the alleged misconduct was not relied upon by the agency (such as the allegation that she provided misleading backlog information in late March 2011) or did not occur (such as the allegation that she instructed an agency official not to issue the DEU certificate, persuaded the selecting official to fill a second investigator position, and convinced the other members of the interview panel to recommend her friend for the second position). PFR File, Tab 4 at 37. The documentary evidence supports most of the agency’s allegations in the inappropriate conduct charge. Moreover, the appellant does not deny that she sat on the interview and selection panel for the inves tigator position, which we find to be the most egregious misconduct under the circumstances. Because we have sustained most, 10 Clear and convincing evidence “is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.” 5 C.F.R. § 1209.4 (e). 11 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 con sider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 13 though not all, of the allegations in the inappropriate conduct charge and the charge itself , we conclud e that the agency’s eviden ce is strong . ¶26 We modify the initial decision to supplement the administrative judge’s analysis of the remaining factors . Consistent with guidance from the Federal Circuit, we have considered all of the pertinent evidence , including the evidence that det racts from the conclusion that the agency met its burden. See Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012). The administrative judge noted in the init ial decision that the appellant, who knew of the information cont ained in her disclosures for some time, did not make her disc losures until after the agency initiated an investigation into her alleged misconduct . ID at 25. The administrative judge also determined that there was “no particular motive” on the part of th e proposing and deciding officials to retaliate against the appellant for her whistleblowing disclosures. ID at 24-25. Indeed, it does not appear that the appellant’s disclosures directly implicated the proposing or deciding officials; we recognize, howe ver, that those responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures as the criticism reflects on them in their capacities as managers and employees. Wilson v. Depa rtment of Veterans Affairs , 2022 MSPB 7 , ¶ 65; Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28-29. Thus, we modify the initial decision to find that this factor may weigh slightly in the appellant’s favor. ¶27 We also have considered whether there is any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. The deciding official stated in her penalty factors worksheet that the penal ty is consistent with those imposed upon other employees for the same or similar offenses. IAF, Tab 8 at 12. However, the agency has not clearly identified any evide nce to support this assertion. The Federal Circuit has held that if there is no comparat or evidence, Carr factor 3 cannot weigh in favor of the Government. Soto , 2022 MSPB 6 , ¶ 18; see Smith v. General Services 14 Administration , 930 F.3d 1 359, 1367 (Fed. Cir. 201 9); Siler v. Environmental Protection Agency , 908 F.3d 12 91, 1299 (Fed. Cir. 2018). Thus, this element cannot weigh in the agency’s favor. ¶28 Based on our review of the evidence , we find that the Carr factor 1 (namely, the sustained misco nduct coupled with the appellant’s high rank and position within the agency) outweighs the other two Carr factors. Accordingly, we are left with a firm belief that the agency would have removed her absent her whistleblowing disclosures. See, e.g. , Carr , 185 F.3d at 1326 (stating that t he whistleblower protection statutes are not meant to p rotect employees from their own misconduct). Race and sex discrimination ¶29 In the initial decision, the administrative judge applied the standard for analyzing Title VII claims set forth in Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 51 (2015), and concluded that the appellant did not prove that the removal action was motivated by race or sex. ID at 25-26. On review, the appellant asserts that the administrative judge erred by applying Savage instead of applying the analytical framework identified in McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 -04 (1973). PFR File, Tab 4 at 35-36. She also asserts that the agency’s allegations were a pretext for discrimination because t he agency presented no credible evidence that she provided false workload information to secure the vacancy announcement in question, ordered a subordinate not to prepare the other certificate, or biased the interview panel in her friend’s favor. Id. at 36. ¶30 At the time that the administrative judge issued the initial decision in this case, our case law provided that McDonnell Douglas was inapplicable to Board proceedings. Savage , 122 M.S.P.R. 612 , ¶ 46. However, while this case was pending on petition for review , the Board overruled Savage in that regard and held that the McDonnell Douglas framework is one of several methods by w hich an appellant may prove a claim of disparate treatment discrimination in a Board 15 appeal. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-24. Nevertheless, for the following reasons, we find that application of the McDonnell Douglas does not ch ange the outcome of the instant appeal. ¶31 In McDonnell Douglas , 411 U.S. at 802-04, the U.S. Sup reme Court held that to establish a claim of prohibited employment discrimination, the employee first must establish a prima facie case; the burden of going forward then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its acti on; and, finally, the employee must show that the agency’s stated reason is merely a pretext for prohibited discrimination. Because the agency in this case has already proffered a nondiscriminatory reason for its action, we proceed to the ultimate questio n of whether the appellant has proven her claim of discrimination , i.e. , whether the agency’s reasons for its action were pretextual. See U.S. Postal Service Board of Go vernors v. Aikens , 460 U.S. 711 , 713 -14 (1983). A complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer ’s proffered explanation is unworthy of credence.” Texas Depa rtment of Community Affairs v. Burdine , 450 U.S. 248 , 256 (1981). ¶32 In this case, the reasons that the agency proffered for its removal action are clear, straightforward, and largely supported by the evidence of record. Although the agency failed to prove the lack of candor charge and some specification s of the inapprop riate conduct charge, on balance, we find little reason to view the removal action as a whole as suspect . Nor has the appellant presented sufficient evidence to raise an inference of discrimination. She identified thirteen non-African American employees whom the agency investi gated for various infractions , but whom the agency treated differently during their investigations by, for example, not reassigning them during the pendency of the investigation. IAF, Tab 82 at 33-36. However , she has not establish ed that any of these individuals are proper comp arators for purposes of a Title VII disparate treatment 16 analysis because there is no evidence that any of these individuals reported to the same supervisor, was subject ed to the same standards, or engaged in similar misconduct. See Hooper v. Department of the Interior , 120 M.S.P.R. 658, ¶ 6 (2014); Spahn v. Department of Jus tice, 93 M.S.P.R. 195, ¶ 13 (2003) . Considering the evidence as a whole, we find that the agency’s removal action was not discrim inatory, and we affirm the administrative judge’s conclusion that the appellant did not prove her affirmative defense.12 See Michal G. v. Department of Veterans Affairs , EEOC Appeal No. 2021001945 , 2022 WL 2701942 , *4 (June 30, 2022). We vacate the administrative judge’s penalty analysis and conclude that r emoval was a reasonable penalty for the sustained misconduct . ¶33 In the initial decision, the administrative judge cited Suarez v. Department of Housing and Urban Development , 96 M.S.P.R. 213, ¶ 47 (2004), aff’d , 125 F. App’x 1010 (Fed. Cir. 2005), for the standard of review for evaluating the penalty . Although the appellant did not specifically challenge the administrative judge’s applying this standard on review, we find that it was improper . In Suarez , 96 M.S.P.R. 213 , ¶ 47, the Board sustained two of four specifications of the first charge , the first charge itself , and the second charge. The Board noted that when all of the agency’s charges are sustained, but not all of the underlying 12 In the initial decision, the administrative judge noted that the appellant argued that her removal was motivated by reprisal fo r equal employment opportunity activity, but she did not preserve the argument in response to the affirmative defenses order, did not pursue it in her prehearing submission, and did not allege facts in her closing argument to support such a claim. ID at 26 & n.14. The administrative judge therefore concluded that the appellant did not meet her burden of proof concerning this claim. ID at 26. On review, the appellant refers to claims of “race discrimination and reprisal” and “race and sex discrimination and reprisal,” PFR File, Tab 4 at 35, but she does not explain or articulate her reprisal claim or how the administrative judge’s conclusion was erroneous. A petition for review must contain sufficient specificity to enable the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review of the record . Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992). Because the appellant’s petition for review does not contain such specificity, we need not address this issue further. 17 specifications are sustained, the agency’s penalty determination is entitled to deference and should be reviewed to determine whether it is within the parameters of reasonableness. Id. By contrast, in this matter, the administrative judge did not sustain the lack of candor charge. Because the administrative judge did not sustain all of the charges , her reliance on the Suarez standard was improper , and we vacate the administrative ju dge’s penalty analysis . ¶34 Instead, we find it appropriate to rely on the standard identified in Tartaglia v. Department of Veterans Affairs , 858 F.3d 1405 , 1407 -08 (Fed. Cir. 2017) . There , the Federal Circuit reviewed the Board’s penalty determination in a case in which it had sustained only one of the specification s of one of the charge s against Mr. Tartaglia . Relying on its earlier decision in Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999), the court in Tartaglia stated that, w hen the Board sustai ns fewer than all of the agency’ s charges, it may mitigate th e agency’ s penalty to the maximum reasonable penalty so long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty be imposed on fewer charg es. Tartaglia , 858 F.3d at 1408 . The court noted that the agency did not indicate that it desired that a lesser penalty be imposed based on th e single sustained specification and charge, and the Board therefore had to determine the maximum reasonable penalty to be imposed in the first instance . D ue to an error committed by the Board in its penalty analysis, the court remanded the appeal for the Board to determine a penalty less than removal. Id. at 1408 -10. ¶35 We have reviewed the decision letter, the deciding official’s penalty factors worksheet, and her declaration, which memorialized her evaluation of the relevant penalty factors. IAF, Tab 6 at 39-42, Tab 8 at 10-14, Tab 79 at 303-12. The deciding official in this matter stated that she sustained the removal based on the most serious charge sustained, that is, the inappropriate conduct charge . IAF, Tab 6 at 40. We also have considered the relevant penalty factors under Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981), including, but not 18 limited to , the n ature and seriousness of the offense and its relation to the appellant’s duties, position, and responsibilities, the appellant’s past disciplinary record and work record, the clarity with which the appellant was on notice of any rules that were violated in committing the offense, the potential for the appellant’s rehabilitation, and mitigating circumstances. Based on our review of these factors, we find that removal is a reaso nable penalty for the sustained misconduct. ¶36 We have considered the appellant’s allegations on review regarding the agency’s improper evaluation of certain Douglas factors, including her past disciplinary record, the clarity with which she was on notice of any rules that were violated, the supervisor’s confidence that she can perform at a satisfactory level, her potential for rehabilitation, and the adequacy of alternative sanctions . PFR File, Tab 4 at 31-35. However, these arguments do not persuade us that a different penalty is warranted . ¶37 Regarding her past disciplinary record, th e appellant contends that the agency treated her 28 years of “discipline -free service” as a neutral, instead of as a mitigating, factor. Id. at 32. It is true that the deciding official indicated that the appellant’s lack of disciplinary history was a ne utral factor , but she also noted that her 28 years of Federal service was a mitigating factor. IAF, Tab 8 at 11, Tab 79 at 308. Even if we considered the appellant’s length of service and lack of disciplinary history as mitigating factor s, such factors would not outweigh the very serious allegations that we sustained concerning the inappropriate conduct charge . See Brough v Department of Commerce , 119 M.S.P.R. 118, ¶ 11 (2013) (stating that the nature and seriousness of the offense and its relationship to the employee’s duties and responsibilities is the most important Douglas factor in determining the appropriate penalty). ¶38 Regarding the clarity with which she was on notice of any rules that were violated , the appellant criticizes the deciding official’s statement that “[w]ith holding information during an investigation is a serious offense and a 19 member of the SES is held to a higher standard.” PFR File, Tab 4 at 34; IAF, Tab 8 at 13.13 We do not read this excerpt ed language in isolation. Rather, leading up to the quoted language, the deciding official stated that because the appellant was a member of the SES, she should be aware of the ethical standards of her position . IAF, Tab 8 at 13. Additionally, the deciding official noted that, as the CC HCO, the appellant guided hiring processes and held a position of expertise in the fi eld of Federal human resources; thus, she was on clear notice of the rules that were violated. Id. Given the nature of the appellant’s position, we discern no error with the deciding offi cial’s a nalysis of this penalty factor. ¶39 The appellant also challenges the deciding official’s decision to treat her potential for rehabilitation as a neutral factor based on the fact that she “has taken no responsibility for her actions and has expressed no remo rse.” PFR File, Tab 4 at 34-35; IAF, Tab 8 at 13. This argument is not persuasive. Indeed, the appellant has not taken responsibility for her actions , and she does not seem to appreciate the gravity of her misconduct, which is made more egregious by her SES status and her CCHCO position. We therefore find no error with the deciding official’s conclusion that the potential for rehabilitation was a neutral factor . See, e.g. , Dolezal v. Department of the Army , 58 M.S.P.R. 64, 66-67, 71 (1993 ) (holding that the appellant , who was removed on two misconduct charges, exhibited little, if any, potential for rehabilita tion and did not appear to understand that he was held to a higher standard of conduct because of his SES status and because his position made him the Training and Doctrine Command’s 13 The appellant appears to assert that the offense of withholding information during an investigation “was never mentio ned” in this case. PFR File, Tab 4 at 31. However, we believe that the deciding official’s statement is a reference to the lack of candor charge. IAF, Tab 6 at 40 (“[I]t is clear you did withhold information from investigators regarding your level of in volvement in [your friend’s] hiring process.”). Because we do not sustain the lack of candor charge, we do not consider the deciding official’s statement in this regard in our penalty analysis. 20 highest -ranking personnel policy maker ), aff’d , 22 F.3d 1104 (Fed. Cir. 1 994) (Table) . ¶40 The appellant further asserts that the penalty was not consistent with those imposed upon other employees for the same or similar offenses, and she identifies the Acting Deputy CSO and the deciding official as “more guilty” than she was because the Acting Deputy CSO certified that the two positions were necessary , and the “penalty decision was based on a totally unrelated offense,” respectively. PFR File, Tab 4 at 33-34. We disagree. As we clarified in Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 10, 13 -14, in assessing a claim of disparate penalty, such as the appellant’s, the relevant inquiry is whether the a gency knowingly and unjustifiably treated employees who engaged in the same or similar offense differently. There is no evidence that either the Acting Deputy CSO or the deciding official w as char ged with comparable misconduct. N or has the appellant alleged that either agency official engaged in the breadth or scope of misconduct that we have sustained against her in this matter. ¶41 Finally , the appellant asserts that , after the agency initiated charges against her, she was rated as “Exceeded Expectations ” in her SES performance appraisal, was given a nearly $8,000 performance award, and was deployed for a high -profile assignment. Id. at 33; IAF, Tab 82 at 180-204, 206. In some cases, issues of performance can fairly be separated from issues of misconduct, see Price v. Veterans Administration , 13 M.S.P.R. 107 , 110 (1982), but in other s they cannot , see Valles v. Department of State , 17 F.4th 149 , 151 -52 (Fed. Cir. 2022). Considering the appellant’s po sition as CCHCO and the nature of the charged misconduct, w e agree with her that there appears to be some tension between the performance evaluation and the removal action in this case . For instance, the appellant was rated at the top of the “Achieved Exp ectations” level for th e core competency of “ Principled – adheres to the highest ethical st andards of public service and pro motes a culture of integrity within DHS.” IAF, Tab 82 at 182. Nevertheless, the appellant’s argument about her post-proposal evaluation, award , 21 and assignment goes not to the charge itself but to her supervisor’s trust and confidence in her. PFR File, Tab 4 at 33. Specifically, she argues that the deciding official’s loss of trust and confidence is irrelevant because the decid ing official was not in her chain of command. Id. The Board has held, however, that the penalty judgment belongs to the agency, not to an appellant ’s supervisor , and that, in the absence of an agency ’s failure to consider the relevant Douglas factors adequately, a supervisor’s opinions are insufficient to overcome the agency ’s judgment concerning the appropriateness of the agency -imposed penalty . Batara v. Department of the Navy , 123 M.S.P.R. 278 , ¶ 7 (2016) ; see Gebhardt v. Department of the Air Force , 99 M.S.P.R. 49 , ¶¶ 19-21 (2009). Therefore, notwithstanding the performance evaluation and other indications that the appellant’s immediate supervisor maintained trust and confidence in her, we find a legitimate basis for the deciding official’s loss of trust and confidence , and we find that she properly considered this to be an aggravating factor. IAF, Tab 6 at 40. According to the vacancy announcement for the CCHCO position , the appellant “has full authority and responsibility for formulating and implementing agency -wide pe rsonnel policies and programs,” she serves as the agency’s “authoritative expert on all issues pertaining to human capital,” and she “[p]rovides leadership and direction in preserving the integrity of merit principles.” IAF, Tab 78 at 107-08. Her miscond uct was antithetical to the very purpose of her CCHCO position, and this fact supports a significant penalty. See, e.g., Batts v. Department of the Interior , 102 M.S.P.R. 27, ¶¶ 2, 13 (2006) (finding that a removal penalty was appropriate when the appellant, an Alternative Dispute Resolution C oordinator and E qual Employment Opportunity Specialist , was charged with unwelcome kissing and hugging of a female coworker); Zazueta v. Department of Justice , 94 M.S.P.R. 493, ¶¶ 1-2, 8 (2003) (upholding the removal of a Border Patrol Agent, who had received cross -designation to enforce Federal drug laws , based on a positive test for illegal 22 drug use) , aff’d , 104 F. App’x 166 (Fed. Cir. 2004) . Accordingly , we concl ude that the removal penalty is reasonable. ¶42 We have considered the appellant’s remaining arguments on review, but we conclude that a different outcome is not warranted. NOTICE OF APPEAL RIG HTS14 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filin g time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 14 Since the issuance of the initial decision in this matter , the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 23 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 24 you do, then you must file with the district 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 resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Op portunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunit y Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 25 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.15 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 15 The original statutory provision that provided for judicial revie w of certain whistleblower claims by any court of 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 re view of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 26 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	CLARK_SHEILA_DC_0752_13_0661_I_1_FINAL_ORDER_2004634.pdf	2023-02-21	null	DC-0752	NP
3,513	https://www.mspb.gov/decisions/nonprecedential/MELENDEZ_MARCOS_DC_1221_16_0303_W_1_REMAND_ORDER_2004640.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARCOS MELENDEZ, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-1221 -16-0303 -W-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Nina Ren , Washington, D.C., for the appellant. Michael J. Buxton , and William R. Kraus , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed this individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 REVERSE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 In this IRA appeal, the appellant, a GS -14 General Engineer in the agency’s Office of Inspector General (OIG) , asserted that the agency subjected him to a hostile work environment, put him on a performance improvement plan (PIP) , and lowered his October 16, 2015 performance evaluation in reprisal for his alleged protected disclosur es of a hostile work environment in OIG Oversight and Technical Assessment Directorate (TAD) . Initial Appeal File (IAF), Tabs 1, 4, 13, 20 -22. He alleged that on November 21, 2014, he wrote letters to Congressman Gerry Connolly and Senators Charles Grassley, Tim Kaine, and Mark Warner, regarding the treatment of employees, including himself, by his first- and second -level supervisors , the Director of the OIG TAD (Director) and the Deputy Inspector General for Policy and Oversight (Deputy) . IAF, Tab 4 at 4, 10-13. He also alleged that he had made similar protected disclosures to the OIG Equa l Employment Opportunity (EEO) O ffice and to the Internal Review Division (IRD) employees tasked with investigating his allegations. Id. at 4-5. The appellant further alleged that his subsequent contacts with agency officials, and his follow -up disclosures with Senator Grassley’s office, which he contended gave his supervisors confirmation that the Deputy was the subject of a congre ssional inquiry, also constituted protected activity. Id. at 6-9. ¶3 Withou t holding the requested hea ring, the administrative judge issued an initial decision dismissing the appellant’s appeal for lack of jurisdiction. IAF, Tab 1, Tab 24, Initial Decision (ID). Although h e found that the appellant had exhausted his administrat ive remedies before the Office of Special Counsel (OSC) and had made nonfrivolous allegations that the agency had placed h im on a 3 PIP a nd subjected him to a hostile work environment ,2 the administrative judge found that the appellant had failed to nonfrivolously allege that he had made a protected disclosure because his purported dis closure lacked “sufficient, far-reaching importance .” ID at 4-6. ¶4 In his petition for review, the appellant challenges the administrative judge’s finding that he faile d to make a protected disclosure. Petition for Review (PFR) File, Tab 1 at 4-6. He also argues that his protected disclosures were contributing factors to the personnel actions at issue in this IRA appeal. Id. at 6-8. Lastly, the appellant challenges t he administrative judge’s failure to address his October 2015 performance evaluation. Id. at 9. The agency responds in opposition. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 Under the Whistleblower Protection Act (WPA), t he Board has jurisdict ion over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that : (1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in 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 decis ion to take or fail to take a personnel action .3 Corthell v. Department of Homeland 2 Concerning the appellant’s October 16, 2015 performance evaluation, even though the appellant exhausted this personnel action with OSC, the administrative judge determined before the close of the record that the appellant was precluded from appealing his evaluation to the Board because he had filed an informal grievance on the issue before filing his IRA appeal. IAF, Tab 20 at 2. The age ncy subsequently conceded that the appellant was not covered by a collective bargaining agreement, such that its informal grievance procedure did not preclude him from also appealing the performance evaluation in his IRA appeal, IAF, Tab 22 at 7, but , desp ite this concession , the administrative judge did not address the performance evaluation in his initial decision. 3 The WPA has been amended several times, including by the Whistleblower Protection Enhancement Act of 2012 . The references herein to t he W PA include those 4 Security , 123 M.S.P.R. 417 , ¶ 8 (2016). A nonfrivolous allegation is one that, if proven, could establish the matter at is sue, is more than conclusory, plausible on its face, and is material to the legal issues of the appeal. 5 C.F.R . § 1201.4 (s). The appellant made a nonfrivolous allegation of a protected disclosure. ¶6 On November 21, 2014, the appellant sent identical letters to his representative in the U.S. House of Representatives and three U.S. Senators. IAF, Tab 4 at 4, 10 -13. The letter stated, among other things, that his workplace had become “increasingly unreasonable, hostile, abusive, and degrading,” and he sought their assistance in initiating an “immediate investigation of this constant abuse, berating, discrim ination, and harassment against [himself] and [his] coworkers.” Id. at 10. Shortly thereafter, the appellant made similar complaints to the agency’s EEO office and to IRD during their subsequent investigations . Id. at 14-18. ¶7 At the outset , we ag ree wi th the administrative judge that the appellant failed to nonfrivolously allege that he disclosed gross mismanagement. ID at 6. Neither the PIP nor the alleged hostile work environment represents management action or inaction that would create a substanti al risk of significant adverse impact on the agency’s ability to accomplish its mission. ID at 6; see Embree v. Department of the Treasury , 70 M.S.P.R. 79 , 85 (1996). ¶8 However, the same is not true for the appellant’s contention that the hostile work environment he allegedly disclosed represented an abuse of authority. PFR File, Tab 1 at 5. The Board has found that supervisory bullying , harassment, or intimidation may constitute an abuse of authority . See S pecial Counsel v. Costello , 75 M.S.P.R. 562 , 580 (1997), rev’d on other grounds , 182 F.3d 1372 (Fed. Cir. 1999). Under the WPA, an a buse of authority is an arbitrary or capricious exercise of power by a Federal official or employee that adversely amendments . We have also reviewed the relevant legislation enacted since the filing of this appeal and find that it does not impact the outcome. 5 affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons. Pulcini v. Social Security Administration , 83 M.S.P.R. 685 , ¶ 9 (1999), aff’d, 250 F.3d 758 (Fed. Cir. 2000). ¶9 The appellant has alleged an arbitrary and capricious exercise of power by his supervisors that adversely affected him and his colleagues in TAD . IAF, Tab 21 at 5-10. Because there is no de minimis standard f or abuse of authority, we find that the appellant has made a nonfrivolous allegation that he made a protected disclosure of an abuse of authority . Pulcini , 83 M.S.P.R. 685 , ¶ 9. The appellant made a nonfrivolous allegation that his disclosure was a contributing factor in the personnel actions at issue. ¶10 To satisfy the contributing factor criterion at the jurisdictional stage of an IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact or the content of the protected disclosure was one factor that tended to affect the personnel action in any way. E.g., Bradley v. Department of Homeland Security , 123 M.S.P.R. 547 , ¶ 13 (2016). One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action throu gh circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contri buting factor in the personnel action. Id. ¶11 The administrative judge found that the appellant failed to nonfrivolously allege that his disclosure was a contributing factor in the personnel actions he alleged, remarking that he failed to identify any even t or circumstance that might have given his supervisors knowledge about his disclosures. ID at 7-8. We disagree. The appellant alleged that his disclosures were a contributing factor in the personnel actions at issue because, shortly following his disclosures to members of congress, the Director announced in a weekly group staff meeting that the Deputy had just identified himself as the subject of an IRD investigation. 6 IAF, Tab 4 at 4. The appellant also argued that the small size of his office gr oup would have made it easy for the Director and the Deputy to figure out who was the source of the disclosures that spurred the subsequent EEO and IRD investigations. Id. at 4-5. Additionally, the appellant alleged that the Deputy observed him leaving t he office of the OIG’s Chief of Staff under circumstances that suggest the appellant may have made a complaint. PFR File, Tab 1 at 8; IAF, Tab 4 at 8. ¶12 We find that these allegations, considered in context, amount to a nonfrivolous allegation that the ap pellant’s supervisors were aware of his alleged protected disclosures. See Cahill v. Merit Systems Protection Board , 821 F.3d 1370 , 1374 -75 (Fe d. Cir . 2016) (finding that the appellant’s allegation of a small group meeting in which his disclosures were discussed adequately conveyed a contention that at least one of the pertinent individuals was aware of the disclosure at issue). Moreover, despite the agency’s assertions to the contrary, for e xample, the contention that agency management had concerns about the appellant’s performance that predated his disclosures, IAF, Tab 22 at 10-11, Tab 15 at 129, 135 -36, such arguments are properly consi dered in the merits phase of an IRA appeal, and cannot defeat an otherwise sufficient allegatio n of jurisdiction, see, e.g., Piccolo v. Merit Systems Protection Board , 869 F.3d 1369 , 1371 (Fed. Cir. 2017); see also Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1369 (Fed. Cir. 2020) (“ The Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether the alleged disclosures fell within the protected categories or whether the disclosures were a contributing factor to an adverse personnel a ction[ .]”).4 Furthermore, any doubt 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). 7 or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. Drake v. Agency for International Development , 103 M.S.P.R. 524 , ¶ 11 (2006). The appellant’s informal grievance does not pre clude considering his October 2015 performance evaluation in this IRA appeal. ¶13 Concerning the appellant’s October 16, 2015 performance evaluation, we find that because he is not covered by a collective bargaining agreement, he is not precluded by his decision to employ the agency’s informal grievance procedure to pursue the evaluatio n in his IRA appeal. See Garrison v. Department of Defense , 101 M.S.P.R. 229 , ¶ 16 (2006) (finding that , because the appellant did not file his grievance pursuant to a negotiated grievance procedure under a collective bargaining agreement, 5 U.S.C. § 7121 (g) did not bar him from pursuing his IRA appeal ). Because the record also reflects that the appellant exhausted his administrative remedies before OSC on this issue, ID at 4; IAF, Tab 4 at 49, the administrative judge should consider the merits of the appellant’s claim that the agency lowered his October 2015 performance evaluation in reprisal for protected activity on remand . The appellant alleged that he engaged in activity protected under 5 U.S.C. § 2302 (b)(9)(C). ¶14 As the appellant notes on re view, he also made disclosures that may be protected under 5 U.S.C. § 2302 (b)(9). PFR File, Tab 1 at 5-6. The provisions of the Whistleblower Protection Enhancement Act of 2012 provide that, unde r 5 U.S.C. § 1221 (a), if the jurisdictional requirements are otherwise met, an employee may seek corrective action before the Board concerning any personnel action taken against that individual as a result of a prohibited personnel practice under 5 U.S.C. § 2302 (b)(8) or § 2302(b)(9)(A)(i), (B), (C), or (D). Corthell , 123 M.S.P.R. 417 , ¶ 10. On remand, after an opportunity for the parties to submit Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 8 evidence and argument, the administrative judge should consider whether the appellant established jurisdiction over these claims in his IRA appeal and, if he so finds, adjudicate the merits of the claims. ORDER ¶15 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MELENDEZ_MARCOS_DC_1221_16_0303_W_1_REMAND_ORDER_2004640.pdf	2023-02-21	null	DC-1221	NP
3,514	https://www.mspb.gov/decisions/nonprecedential/MCALPINE_LATASHA_VALERIA_AT_1221_16_0301_W_1_REMAND_ORDER_2004649.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LATASHA VALERIA MCAL PINE, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER S AT-1221 -16-0301 -W-1 AT-1221 -18-0594 -W-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Latasha Valeria McAlpine , Smyrna, Georgia, pro se. Megan Cleary DePonte , Esquire, and Owen Keegan , Esquire, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed petition s for review of the initial decision s dismissing her individual right of action (IRA) appeal s for lack of jurisdiction. For the reasons discussed below, we JOIN the appeals, GRANT the appellant’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been id entified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 petition s, VACATE IN PART and A FFIRM IN PART the initial decisions, FIND jurisdiction over both IRA appeals , and REMAND the appeals to the Atlanta Regional O ffice for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 In October 2014 , the appellant was hired as a G S-11 Attorney -Advisor, which was a decision -writing position in the bargaining unit. McAlpine v. Social Security Administration , MSPB Docket No. AT -1221 -16-0301 -W-1 (0301 matter) , Initial Appeal File ( 0301 IAF), Tab 6 at 12. Notwithstanding her position description classification, she asserted that she performed only Labor Management Employee Relations (LMER) duties. Id. at 8. Starting in April 2015, she argued to the agency’s Center for Human Resources (CHR) that there were irregularities in her positi on descript ion classification and that she should have been paid at a higher grade for the LMER work that she was performing. Id. at 15. The appellant later was advised by senior agency officials that she could not remain in her position and would have t o reapply for her position, which was reclassified as a higher -graded Human Resources Specialist position. Id. at 16. The appellant applied for a Human Resources Specialist position, she was not selected, and she was reassigned to the decision -writing unit. Id. ¶3 The appellant filed a complaint in 2015 with the Office of Special Counsel (OSC), alleging that she was not selected for the Human Resources Specialist position and was reassigned in retaliation for raising the above -mentioned issues with CHR. Id. at 5-19. After OSC closed its investigation, she timely filed a Board IRA appeal in 2016 . 0301 IAF, Tab 1, Tab 6 at 21 -23. In an initial decision, the administrative judge dismissed the appeal for lack of jurisdiction. 0301 IAF, Tab 13, Initial Dec ision ( 0301 ID). The administrative judge noted that the appellant, in her Board appeal, asserted that she disclosed a violation of law, rule, or regulation, and identified numerous statutes, regulations, and 3 policies; by contrast, in her OSC complaint, s he did not allege a violation of law, rule, or regulation in general nor did she identify any statutes, regulations, and/or policies. 0301 ID at 5 -6. The administrative judge determined that the allegations in her Board appeal constituted an improper rec haracterization of the allegations in her OSC complaint, and he did not consider them. Id. (citing Ellison v. Merit Systems Protection Board , 7 F.3d 1031 , 1036 (Fed. Cir. 1993)). He further found that she did not make a nonfrivolous allegation of a protected disclosure involving gross mismanagement, an abuse of authority, or a gross waste of funds. 0301 ID at 6 -9. ¶4 The appellant has filed a pet ition for review in the 0301 matter, the agency has filed a response, and the appellant has filed a reply brief. McAlpine v. Social Security Administration , MSPB Docket No. AT -1221 -16-0301 -W-1, Petition for Review (0301 PFR) File, Tabs 1, 3 -4. On petitio n for review, the appellant claims that the administrative judge erroneously required her to correctly label the category of protected disclosure under 5 U.S.C. § 2302 (b)(8). 0301 PFR File, Tab 1 at 4-7. She further argues that she made nonfrivolous allegations of a violation of law, rule, or regulation, gross mismanagement, abuse of authority, and a gross waste of funds. Id. at 7-15. Finally, she includes with her petition “new and material evi dence.” Id. at 16 -21, 23 -51.2 ¶5 During the pendency of her petition for review in the 0301 matter, the appellant filed another complaint with OSC in 201 8 claiming that in reprisal for the same whistleblowing disclosures included in the 0 301 matter , her 20 15 OSC complaint , and 2016 IRA appeal, the agency failed to issue her a monetary award in October 2017 and did not select her for a position in February 2018. McAlpine v. Social Security Administration , AT -1221 -18-0594 -W-1 (0594 matter) , Initial Appeal File (0594 IAF), Tab 6 at 14 -23. Following OSC’s closure of the 2 Because we find that the appellant made a nonfrivolous allegation of jurisdict ion without considering this evidence, we need not discuss it in this Order. The administrative judge should consider this evidence on remand. 4 appellant’s complaint with no furth er action, she timely filed a second IRA appeal with the Board , i.e., the 0594 matter . 0594 IAF, Tab 1, Tab 6 at 25 -26. ¶6 In the 0594 matter, t he administrat ive judge apprised the parties of the appellant’s jurisdictional burden, and they both responded on the issue . 0594 IAF, Tabs 3, 6, 8 -9. He then issued an initial decision dismissing the appellant’s second IRA appeal for lack of jurisdiction. 0594 IAF, Tab 10, Initial Decision ( 0594 ID) at 1 -9. Specifically, the administrative judge found that the appellant was precluded from relitigating whether her disclosures to CHR from the 0301 matter were whistleblowing disclosures on adjudicatory efficiency groun ds, as he had already determined that they were not and the appellant’s petition for review of that decision was pending with the Board. 0594 ID at 5 -6. The administrative judge determined that the appellant nonfrivolously alleged that she engaged in pro tected activity by filing her 2015 OSC complaint and 2016 IRA appeal with the Board in the 0301 matter , but he concluded that she failed to nonfrivolously allege that either of these activities was a contributing factor in the agency’s decisions to take or fail to take the personnel actions at issue. 0594 ID at 6-9. ¶7 The appellant has filed a petition for review of the initial decision in the 0594 matter , to which the agency has responded in opposition. McAlpine v. Social Security Administration , AT -1221 -18-0594 -W-1, Petition for Review (0594 PFR) File, Tabs 1, 3. In her petition for review, the appellant asserts, among other things, that the decisionmakers had knowledge of her protected activity. 0594 PFR File, Tab 1 at 4 -5. DISCUSSION OF ARGUME NTS ON REVIEW We join the 0301 and 0594 appeals. ¶8 The regulation at 5 C.F.R. § 1201.36 (b) states that it is appropriate to sua sponte join two appeals if doing so would expedite processing of the cases and not adversely affect the interest of the parties. For the reasons described herein, 5 the appellant has nonfrivolously alleged an ongoing pattern of retaliation across her two appeals , and we find that joinder is appropriate. Legal standard at the jurisdictional stage in an IRA appeal ¶9 The Board has jurisdiction over an IRA appeal if the appellant exhausts her administrative remedies before OSC and makes nonfrivolous allegation s of the following : (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); and (2) the disclosure or protected activity was a co ntributing factor in the agency’ s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Bishop v. Department of Agriculture , 2022 MSPB 28 , ¶ 13; Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014). A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. Bishop , 2022 MSPB 28 , ¶ 13; Bradley v . Department of Homeland Security , 123 M.S.P.R. 547, ¶ 6 (2016); 5 C.F.R. § 1201.4 (s). We grant the appell ant’s petition for review in the 0301 matter and find that she established Board jurisdiction . ¶10 As relevant here, an appellant in an IRA appeal makes a disclosure when she communicates information that she reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, an abuse of authority, and/or a gross waste of f unds. 5 U.S.C. § 2302 (a)(2)(D). The administrative judge correctly noted that the appellant did not state in her OSC complaint that her disclosure evidenced a violation of law, rule, or regulatio n. 0301 ID at 6. However, the Board has held that the key to determining whether an appellant has satisfied the exhaustion requirement in an IRA appeal is whether she provided OSC with a sufficient basis to pursue an investigation, not whether she correc tly labeled the category of wrongdoing; OSC can be expected to know which category of wrongdoing might be implicated by a particular set of factual allegations. Thomas v. Department of the Treasury , 77 M.S.P.R. 224 , 236 -37 6 (1998), overruled on other grounds by Ganski v. Department of the Interior , 86 M.S.P.R. 32 , 37 (2000). ¶11 Contrary to the administrative judge’s conclusion, we find that the appellant provided OSC with a sufficient basis to investigate a prohibited personnel practice under 5 U.S.C. § 2302 (b)(8). Some allegations of wrongdoing, such as theft of Government property or fraudulent claims for pay, so obviously implicate a violation of law, rule, or regulation, that an appellant need not identi fy what law, rule, or regulation was violated. DiGiorgio v. Department of the Navy , 84 M.S.P.R. 6 , ¶ 14 (1999). The gravamen o f the appellant’s OSC complaint was that senior agency officials engaged in fraud when she (and four other employees) were hired as decision -writing attorneys but were in fact utilized as LMER attorneys and were paid at a lower pay grade for the work that they were performing. 0301 IAF, Tab 6 at 5 -19. We conclude that, based on the nature of these allegations, she nonfrivolously alleged a violation of law, rule, or regulation. See e.g., DiGiorgio , 84 M.S.P.R. 6 , ¶¶ 13-15 (finding a nonfrivolous allegation of a violation of law, rule, or regulation based on a claim that employ ees fraudulently claimed entitlement and received payment for overtime hours they did not work). . ¶12 An abuse of authority occurs when there is an ar bitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or to preferred other persons. Wheeler v. Department of Veterans Affairs , 88 M.S.P.R. 236, 241, ¶ 13 (2001). We further find that the appellant’s allegation of wrongdoing by senior agency officials and the har m that she (and the other four employees) suffered constitutes a nonfrivolous allegation that she disclosed an abuse of authority. See Berkowitz v. Department of the Treasury , 94 M.S.P.R. 658, ¶ 11 (2003) (holding that an allegation that the agency manipulated the creation and promotion process of a GS -14 Drug Enforcement Coordinator position, so that only certain employees were eli gible for selection, constituted a 7 nonfrivolous allegation of an abuse of authority). We have considered the appellant’s assertion on review that she made a nonfrivolous allegation involving gross mismanagement and/or a gross waste of funds , 0301 PFR File , Tab 1 at 10-11, 13 -15, but for the reasons described in the initial decision, 0301 ID at 6-8, a different outcome is not warranted. ¶13 Finally, we conclude that the appellant nonfrivolously alleged that her disclosure was a contributing factor in the agency’s decision not to select her for the Human Resources Specialist position and to reassign her to the decision -writing unit.3 One way of proving contributing factor is to show that the official(s) taking the personnel action(s) knew of the disclosure or protected activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action. 5 U.S.C. § 1221 (e)(1). In her OSC complaint, the appellant stated that she made her disclosure to CHR as early as April 2015, the agency officials responsible for the personnel actions were aware of the disclosure, and the nons election and reassignment occurred approximately 6 months after the disclosure. 0301 IAF, Tab 6 at 7, 15 -17. The Board has held that 6 months is well within the range of time between a disclosure and a personnel action from which an inference of causatio n arises . Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 13, aff’d , 353 F. App’x 435 (Fed. Cir. 2009). Accordingly, the appellant has satisfied her burden at the jurisdictional stage.4 3 The reassignment and nonselection both appear to qualify for coverage under the whistleblower protection statutes. 5 U.S.C. § 2302 (a)(2)(A)(i), (iv); see Ruggieri v. Merit Systems Protection Board , 454 F.3d 1323 , 1326 -27 (Fed. Cir. 2006) (concluding that the whistleblower protection statutes cover an agency’s failure to make an appointmen t). 4 The 2015 OSC complaint and the 2016 IRA appeal occurred after the 2015 reassignment and nonselection and, therefore, could not have been contributing factors in those personnel actions. Davis v. Department of Defense , 106 M.S.P.R. 560 , ¶ 12 (2007), aff’d , 278 F. App’x 1009 (Fed. Cir. 2008). 8 We grant the appellant’s petition for review in the 0594 matter and find that she established Board jurisdiction . ¶14 As laid out in detail in our findings regarding the 0301 matter , the appellant nonfrivolously alleged making protected disclosures to CHR of a violation of law, rule, or regulation, and an abuse of authority. Supra ¶¶ 11-12. As a result, we vacate the administrative judge’s finding in the 0594 matter that the appellant wa s precluded from litigating whether her disclosures were protected by 5 U.S.C. § 2302 (b)(8) on adjudicatory efficiency grounds. ¶15 The administrative judge correctly held in the 0594 matter that the appellant nonfrivolously alleged that she engaged in protected activity under 5 U.S.C. § 2302 (b)(9). It is a prohibited personnel practice to take or fail to take a personnel action against an em ployee because she exercised any appeal, complaint, or grievance right granted by any law, rule, or regulation with regard to remedying a violation set forth in 5 U.S.C. § 2302 (b)(8). 5 U.S.C. § 2302 (b)(9)(A)(i); Linder , 122 M.S.P.R. 14 , ¶ 10. We agree with the administrative judge that the appellant nonfrivolously alleged that she engaged in such protected activity when she filed her 2015 OSC complaint and 2016 IRA appeal in the 0301 matter . 0594 ID at 6 -7. Both filings were attempts by the appellant to remedy al leged reprisal for whistleblowing disclosures in violation of 5 U.S.C. § 2302 (b)(8). Neither party raises an issue with this finding on review.5 ¶16 To meet her jurisdictional burden, the appellant must also nonfrivolously allege that her whistleblowing disclosure s and/or protected activity were a contributing factor in the agency’s decision not to issue her a monetary award in 5 The grievance that the appellant mentioned in this appeal involved an attempt to recei ve back pay for prior work that she performed. 0594 IAF, Tab 1 at 5; 0594 ID at 7 n.3. We agree with the administrative judge that the substance of the grievance did not concern remedying a violation of 5 U.S.C. § 2302 (b)(8), and any claim of whistleblower reprisal for filing such a grievance is outside of the Board’s jurisdiction in the context of an IRA appeal. 0594 ID at 8 n.5; see Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013). Neither party challenges the administrative judge’s conclusion on this issue, and we affirm it herein. 9 October 2017 and the February 2018 nonselection. Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 12 (2016) . To do so, the appellant need only demonstrate that the fact of, or th e content of, the whistleblowing disclosure or protected activity was one of the factors that tended to affect the personnel actions in any way. Carey v. Department of Veterans Affairs , 93 M.S.P.R. 676 , ¶ 10 (2003). One way for an appellant to establish contributing factor is the knowledge/timing test . Supra ¶ 13. As an alternative to the knowledge/timing test, the Board may consid er other relevant evidence, including but not limited to, the strength or weakness of the agency’s reasons for taking the personnel action(s), whether the whistleblowing disclosure and/or protected activity was directed at the responsible agency officials, and whether the responsible agency officials had a desire or motiv e to retaliate against the appellant. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 65; Powers v. Department of the Navy , 69 M.S.P.R. 150, 156 (1995) . Nonfrivolous allegations suffice at the jurisdictional stage because the appellant “may not have access to all relevant documents or have been provided an opportunity to conduct discovery.”6 Piccolo v. Merit Systems Protection Board , 869 F.3d 1369 , 1371 (Fed. Cir. 2017). ¶17 In contrast to the administrative judge, we find that the appellant made a nonfrivolous allegation of contributing factor. As a preliminary matter , the appellant identified D.A. and/or A.B. as the decisionmaker s behind the 2017 denial of the monetary award and the 2018 nonselection . See 0594 IAF, Tab 1 6 This principle is especially applicable here because the administrative judge granted the agency’s motion to extend the deadline for responding to the acknowledgment order and the issuance of discovery requests until after the Board ruled on the jurisdicti onal issue. 0594 IAF, Tab 5, Tab 7 at 1. Importantly, the agency’s motion did not state whether the appellant had any objection to this requested relief. 0594 IAF, Tab 5; see 5 C.F.R. § 1201.55 (a) (“A party filing a motion for extension of time, a motion for postponement of a hearing, or any other procedural motion must first contact the other party to determine whether there is any objection to the motion, and must state in the motion whether the other party has an objection.”). Moreover, the administrative judge ruled on the agency’s motion sooner than 10 days from when it was served. 5 C.F.R. § 1201.55 (b). 10 at 5 (stating that the “selecting officials” included A.B. and D.A and that they “handled the selection process”), 11 (“[D.A.] is over the monetary awards .”). We also find that the appellant nonfrivolously alleg ed that D.A. and A.B. had knowledge of her 2015 OSC c omplaint and February 2016 IRA appeal : [M]anagement responded to claimant’s filings by asserting that [the a]ppellant and her coworkers were reassigned to [the] Atlanta Writing Unit after their detail ended. This response was made by management, [A .B.] and [D.A.], to [the a]ppellant’s prior grievance and in the [a]gency’s prior filings with the Board. . . . It is impossible for the former Regional Attorney [A.B.], who receives notifications of all [Merit Systems Protection Board (MSPB)] and [equal e mployment opportunity ( EEO )] employee filings simply because of the role of the job and the highest ran king management official in Region 4, [D.A.], who also receives notification of all such employee filings in the Region because of her job duties to not be aware of the previous OSC , MSPB [,] and grievances filed against them. 0594 IAF, Tab 9 at 4. We further find that , because the appellant alleged that the 2017 denial of a monetary award occurred ap proximately 20 months after she filed her February 2016 IRA appeal , she has nonfrivolously alleged under the knowledge/timing test that her February 2016 IRA appeal was a contributing factor in the 2017 denial of a monetary award. See, e.g. , Redschlag v . Department of the Army , 89 M.S.P.R. 589 , ¶ 87 (2001) (finding that an appellant ’s disclosures were a contributing factor in her removal when they were made approximately 21 months and th en slightly over a year before the agency removed her ). ¶18 However , the delay between the 2015 CHR disclosures and 2015 OSC complaint and the 2017 denial of a monetary award and 2018 nonselection , as well as the delay between the February 2016 IRA appeal an d 2018 nonselection, are too remote in time to satisfy the timing prong of the knowledge/timing test. See Costello v. Merit Systems Protection Board , 182 F.3d 1372 , 1377 (Fed. Cir. 1999) (finding that a 2 -year gap between the whistleblowing disclosures and the allegedly retaliatory action was too long an interval to justify an inference of 11 cause and effect between the two); Salinas v. Department of the Army , 94 M.S.P.R. 54 , ¶ 10 (2003) (holding that a gap of 2 -3 years that passed between the whistleblowing disclosure and personnel actions at issue was too long to satisfy the knowledge/timing test). ¶19 Nevertheless, if we consider the alternative approach, discussed above , supra ¶ 16, we find that the appellant has made a nonfrivolous allegation of Board jurisdiction regarding the 2015 whistleblowing disclosures , the 2015 and 2016 protected activity , and the 2017 denial of a monetary award and 2018 nonselection . Regarding the strength or weakness of the agency’s reasons for denying a monetary award in 2017 and not selecting her in 2018, the appellant point ed out inconsistencies in personnel decisions when D.A. and/or A.B. were involved. For example, the appellant alleged that she was interview ed for the GS-13 LMER attorney position in 2016, but she was not even interviewed in 2017 , although she was referred for consideration both times. 0594 IAF, Tab 1 at 11. She further alleged that she received a monetary awar d in 2016, but not in 2017, even though her “average []” was higher in 2017. Id. Moreover, the appellant alleged that t he only people in her unit who did not receive monetary awards in 2017 were herself and the other employees who lodged similar complaint s. Id. These inconsistencies, coupled with the appellant’s apparent assertion that the selectees had inadequate qualifications, id., call into question whether the agency had a legitimate basis for denying her a monetary award in 2017 and failing to sele ct her in 2018. ¶20 We have also considered whether the whistleblowing disclosure s and/or protected activity was directed at the responsible agency officials. The appellant stated on her initial appeal form that A.B. and D.A. —the decisionmakers in the 2017 de nial of a monetary award and/or the 2018 nonselection —hired her into the allegedly improperly classified position, they were therefore responsible for her purported underpayment in that position, and they made the retaliatory decision to reassign her after she complained regarding this i mpropriety. 0594 IAF, Tab 1 12 at 5, 11. These allegations led directly to her 2015 CHR disclosures, her 2015 OSC complaint, and the 2016 IRA appeal. ¶21 Finally, we have considered whether the responsible agency officials were motivated to retaliate against the appellant. The appellant appears to allege that D.A.’s and A.B.’s authority and/or duties were reduced because of her complaints, which could create a motive to retaliate. 0594 IAF, Tab 1 at 5, Tab 6 at 6; see Redschla g, 89 M.S.P.R. 589, ¶ 88 (finding a substantial motive to retaliate where the officials involved in the personnel action were disc iplined for their roles in the misconduct reported by the appellant). For these reasons , we find that the appellant has satisfied her burden in this matter at the jurisdictional stage. Having found that the Board has jurisdiction over the 0301 and 0594 ma tters, we remand these appeals for further adjudication. ¶22 Our conclusion that the appellant has satisfied her jurisdictional burden and is entitled to a hearing in the 0301 and 0594 matters is consistent with the longstanding principle that whistleblower pr otection laws are remedial in nature, intended to improve protections for Federal employees, and should be construed broadly to effectuate that purpose. Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283, ¶ 6 (2006); Keefer v. Department of Agriculture , 82 M.S.P.R. 687, ¶ 13 (1999); King v. Department of Health and Human Services , 71 M.S.P.R. 22, 32 (1996). We recognize that t he agency has disputed some of the appellant’s assertions , 0301 IAF, Tab 11 ; 0594 IAF, Tab 8, but it is not appropriate to consider the agenc y’s evidence at the jurisdictional stage , Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). Accordingly, we find that the appella nt has made nonfrivolous allegations that the 2015 nonselection and reassignment, the 2017 denial of a monetary award, and the 2018 nonselectio n were taken (or not taken) because of her whistleblowing disclosures and/or protected activity , as described her ein. We remand these appeals to give the parties an opportunity to conduct discovery and, if appropriate, have a hearing on the merits. 13 ORDER ¶23 For the reasons discussed above, we join and remand th ese matters to the Atlanta Regional Office for further adju dication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MCALPINE_LATASHA_VALERIA_AT_1221_16_0301_W_1_REMAND_ORDER_2004649.pdf	2023-02-21	null	S	NP
3,515	https://www.mspb.gov/decisions/nonprecedential/SCERE_JOHN_ALLAN_NY_0752_14_0157_C_1_ORDER_REDACTED_2026272.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHN ALLAN SCERE, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER NY-0752 -14-0157 -C-1 DATE: February 21, 2023 THIS ORDER IS NONPRECEDENTIAL1 Jonathan Bell , Esquire, Garden City, New York, for the appellant. Julie L. Kitze , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Member Leavitt issues a separate dissenting opinion. ORDER ¶1 The agency has filed a petition for review of the initial decision, which granted in part the appellant’s petition for enforcement. Generally, we grant petitions such as this one only in the followi ng circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 Regulation s, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). We find the agency in NONCOMPLIANCE . BACKGROUND ¶2 The appellant served as a Federal Air Marshal (FAM) with th e agency’s Transportat ion Security Administration . Scere v. Department of Homeland Security , MSPB Docket No. NY -0752 -14-0157 -I-1, Initial Appeal File (IAF), Tab 5, Subtab 4a. In January 2014, the agency removed him for his inability to meet a condition o f employment; namely, his inability to maintain a Government travel card. Id., Subtabs 4a, 4b. The appellant timely appealed his removal to the Board and requested a hearing. IAF, Tab 1. ¶3 Following the requested hearing, the administrative judge issued an initial decision mitigating the removal to a reassignment. IAF, Tab 23, Initial Decision (ID). Specifically, the administrative judge found that the agency proved its charge because the bank issuing the appellant’s travel card cancelled it and declin ed to reinstate it upon the appellant’s request ; thus, the appellant was not able to meet a condition of employment as a FAM. ID at 4 -19. She also found the appellant’s affirmative defense that the agency violated his due process rights to be without mer it and that the agency proved a nexus between the appellant’s 3 conduct and the efficiency of the service. ID at 19 -20. However, the administrative judge found that the agency’s penalty was not entitled to deference because the deciding official did not pr operly consider the Douglas factors and , given the mitigating factors present, the penalty of removal was not appropriate.2 ID at 20 -22. Accordingly, the administrative judge ordered the agency to cancel the removal action, effective January 8, 2014, and assign the appellant to a position for which he was qualified in the agency’s New York Field Office that did not require the use of a Government travel card and would result in “the least reduction in grade and pay” from his FAM position. ID at 22. She also directed the agency to pay the appellant the appropriate amount of back pay, interest, and other benefits. Id. ¶4 The agency appealed the initial decision to the full Board; however, the two sitting Board members could not agree on the disposition of the petition for review, and the initial decision became the final decision of the Board. Scere v. Department of Homeland Security , MSPB Docket No. NY -0752 -14-0157 -I-1, Order (Sept. 9, 2016). ¶5 On November 28, 2016, the appellant timely filed a petition fo r enforcement in which he asserted that the agency failed to provide him with back pay, interest, and other benefits. Scere v. Department of Homeland Security , MSPB Docket No. NY -0752 -14-0157 -C-1, Compliance File (CF), Tab 1. The agency responded that the Board lacked the authority to order the agency to provide back pay because the appellant was improperly reassigned , but in th e event the Board had such authority , the appellant was not entitled to back pay because he was not ready, willing, and able to perform the duties of the position 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) , the Board articulated a nonexhaustive list of factors to be considered when evaluating the penalty to be imposed for an act of misconduct. 4 to which the agency reassigned him .3 CF, Tab 5 at 7-11. The administrative judge issued a compliance initial decision granting in part the appellant’s petition for enforcement. CF, Tab 14, Compliance Initial Decision (CID). She found that the agency’s removal action led to an unwarrant ed personnel action and that the agency was required to provide the appellant with the back pay and interest he was entitled to for the position to which h e was reassigned, from the effe ctive date of the removal until September 29, 2016, the date the agency ordered him to return to work following the issuance of the Board’s order, less his earnings from outside employment. CID at 9-10. The administrative judge also found that the appell ant did not make himself available for work until October 24, 2016 ; thus, he was not entitled to back pay for that time period. CID at 10. Accordingly, the administrative judge ordered the agency to provide the appellant with back pay from the period of January 9, 2014 , until September 29, 2016, less outside earnings, as well as interest on the back pay amount and benefits. CID at 11; see also CF, Tab 16. ¶6 The agency has filed a petition for review of the compliance initial decision, which the appellant has opposed. Scere v. Department of Homeland Security , MSPB Docket No. NY -0752 -14-0157 -C-1, Compliance Petition for Review File (C PFR File), Tabs 1, 3. The agency has filed a reply to t he appellant’s opposition. C PFR File, Tab 4. On review, the agency renews its arguments that the administrative judge did not have the authority to award the appellant back pay and that, even if the administrative judge did have such authority, the appellant is not entitled to any ba ck pay. CPFR File, Tab 1. As set forth below, the agency’s arguments are without merit. 3 The appellant also filed a motion for attorney fees , which the administrative judge granted in part. Scere v. De partment of Homeland Security , MSPB Docket No. NY- 0752 -14-0157 -A-1, Ad dendum Initial Decision (July 6 , 2017). T he agency’s petition for review of that addendum initial decision will be addressed in a separate decision . 5 DISCUSSION OF ARGUME NTS ON REVIEW The administrative judg e had the authority to award back pay. ¶7 On review, the agency argues that the administrative judge did not hav e the authority to mitigate the penalty of removal and reassign the appellant to another position , absent an agency policy or regulation obligating reassignment ; thus, the removal action was not unjustified or unwarranted , as is required to order back pay. CPFR File, Tab 1 at 8-13. The agency advanced the argument that the administrative judge did not have the authority to reassign the appellant in its petition for review of the initial decision mitigating the removal to a reassignment . CF, Tab 5 at 4-5. Enforcement proceedings are not to be used to revisit the merits of an underlying appeal, and we decline to do so here. Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458 , ¶ 24 (2008). We similarly decline to entertain the agency’s arguments alleging error in the administrative judge’s factual findings in th e underlying appeal. See CPFR File, Tab 1 at 14 -18. ¶8 The agency is subject to the Back Pay Act, codified as amended at 5 U.S.C. § 5596 . 49 U.S.C. § 40122 (g)(3). Section 5596(b) provides that an employee who “is found by appropriate authority . . . to have been a ffected by an unjustified or unwarranted personnel action” is entitled to receive back pay in the amount that he would have earned during the period if the personnel action had not occurred, less any amounts he earned through other employment during that period , plus interest and other allowances. Because the administrative judge found in the underlying appe al that the penalty of removal could not be sustained and mitigated the removal to a reassignment , she properly concluded that the removal was unwarranted and that the appellant was entitled to back pay in the amount he would have earned had he been reassigned to the Program A ssistant position , effective on the effective date of his removal, less any outside earnings. ID at 20-22; CID at 9 -10; see, e.g ., Clemons v. Smithsonian Institution , 54 M.S.P.R. 1 , 2 (1992) ( approving of an award of back pay where the 6 administrative judge ordered the agency to cancel a removal action and mit igate the penalty to a suspension). The administrative judg e properly concluded that the appellant was entitled to back pay for the period prior to the date the agency ordered him to return to duty. ¶9 An employee is not entitled to back pay for any period during which he was not “ready, willing, and able” to perform his duties due to an incapacitating illness or injury, or for other reasons unrelated to the unjustified or unwarranted personnel action. King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 12 (2005), aff’d , 167 F. App’ x 191 (Fed. Cir. 2006) ; 5 C.F.R. § 550.805 (c)(1), (2) . The agency bears the initial burden of proving that it has provided the appellant with the appropriate amount of back pay. King , 100 M.S.P.R. 116, ¶ 13. Whe n, however, the agency produces “concrete and positive evidence, as opposed to a mere theoretical argument ” demonstrating that ther e is some substance to its affirmative defense that the appellant was not ready, willing, and able to work during all or part of the period for which he claims entitlement to back pay, the burden shifts to the appellant to show his entitlement to back pay . Id. ¶10 The agency contend s that the appellant is not entitled to back pay at all because he allegedly “declined the [a]gency’s repeated attempts to have him report” for duty. CPFR File, Tab 1 at 13 -14. The record reflects that, pursuant to the administr ative judge’s interim relief order, the agency offered the appellant the Program Assistant position in December 2015, which the appellant accepted , and he notified the agency that he was eligible to report for duty in January 2016. CF, Tab 5 at 13 -14, 17. An agency representative attested that she informed the appellant that she would provide him with a report date after he obtained the requisite security clearance. Id. at 13 -14. The agency has represented that the appellant then declined to report for duty in January and July 2016 , but it did not provide any evidence that it provided the appellant with a date to return to duty at either time, and he failed to do so . Id. at 20 , 24. Accordingly, the agency has not presented anything more than a theoreti cal argument that the appellant was not 7 ready, willing, and able to work during this time period. Cf. Hill v. Department of the Air Force , 60 M.S.P.R. 498 , 502 n.3 (1994) ( in finding that the agency failed to establish its defense that the appellant was not ready, willing, and able to work, observing that the agency did not present any evidence that the appellant could not or would not have re turned to his former duty station if he had been asked to do so). ¶11 However, on September 21, 2016, the agency ordered the appellant to report for duty on September 29, 2016 , but he failed to return to work until October 24, 2016 . CF, Tab 5 at 23. Contra ry to the appellant’s assertions, the agency provided concrete evidence that the appellant was working at outside employment during this latest time period and was not ready, willing, and able to work , and he failed to rebut the agency’s evidence or provide any explanation for his failure to return to work during this period . CF, Tab 10 at 10; see CF, Tabs 9, 11 ; cf. Naekel v . Department of Transportation , 850 F.2d 682 , 685 (Fed. Cir . 1988) (awarding back pay for 2 months after the agency ordered the appellant to report for duty whe n he acted expeditiously in giving notice to his interim employer and relocating his family to the new duty location). Accordingly, the administrative judge properly found that the appellant was only entitled to back pay for the period from January 9, 2014 , until September 29, 2016, less outside earnings, as well as interest on the back pay amount and benefits . The compliance initial decision is affirmed. ORDER ¶12 We ORDER the agency to submit to the Clerk of the Board , within 6 0 days of the date of this Order , satisfactory evidence of compliance with this decision . This evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)(i), including submission of evidence and a narrative statement of compliance. The agency’s submission must include proof that it has complied with the Board’s Order by paying the appellant the correct amount of back pay, 8 interest on back pay, and other benefits under the Office of Personnel Management’s regulations. The agency must serve all parties with copies of its submission. ¶13 We also 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. ¶14 The agency’s submission sho uld be filed under the new docket number assigned to this compliance referral matter, MSPB Docket No. NY-0752-14-0157- X-1. All subsequent filings should refer to the compliance referral docket number set forth above and should be faxed to (202) 653 -7130 o r mailed to the following address: Clerk of the Board U.S. Merit Systems Protection Board 1615 M Street, N.W. Washington, D.C. 20419 Submissions may also be made by electronic filing at the Board’s e -Appeal site (https://e -appeal.mspb.gov) in accordance wi th its regulation at 5 C.F.R. § 1201.14 . ¶15 The appellant may respond to the agency’s evidence of compliance within 20 days of the date of service of the agency’s submission. 5 C.F.R. § 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of compliance, the Board may assume that he is satisfied with the agency’s actions and dismiss the petition for e nforcement . ¶16 The agency is reminded that, if it fails to provide adequate evidence of compliance, the responsible agency official and the agency’s representative may be required to appear before the General Counsel of the Merit Systems Protection Board to s how cause why the Board should not impose sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to impose sanctions includes the authorit y to order that the responsible agency 9 official “shall not be entitled to receive payment for service as an employee during any period that the order has not been complied with.” 5 U.S.C. § 1204 (e)(2)(A). ¶17 This Order does not constitute a final order and therefore is not subject to judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of the remaining issues in the petition for enforcement, a final order shall be issued, which then shall be subject to judicial revie w. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DISSENTING OPINION O F TRISTAN L. LEAVITT in John Allan Scere v. Department of Homeland Security MSPB Docket No. NY -0752 -14-0157 -C-1 ¶1 For the reasons set forth below, I respectfully dissent from my colleagues’ decision to deny the agency’s petition for review and affirm the compliance initial decision which granted in part the appellant’s petition for enforcement and found the agency in noncompliance. ¶2 In the underlying initial decision in this case, the administrative judge upheld the charge of inability to meet a condition of employment, based on the appellant ’s having lost the ability to carry a Government credit card, a requirement o f his Federal Air Marshal position. However, she m itigated the appellant’s removal, ordering his reassignment to a position for which he was qualified and that did not require the use of a credit card, at the least reduction in grade and pay. The initial decision became the Board’s final decision when the two sitting Board members could not agree on the proper disposition of the agency’s petition for review. The agency appointed the appellant to the position of Program Assistant. Although the appellant did not report for duty, he subsequently filed a petition for enforcement seeking back pay, interest, and other benefits. In response, the agency repeated its argument that the administrative judge did not have the authority to mitigate the penalty of rem oval and reassign the appellant to another position, absent an agency policy or regulation obligating reassignment, and that therefore the removal action was not unjustified or unwarranted, a finding required to order back pay. In her compliance initial decision, the administrative judge was not persuaded by the agency’s argument which it repeats in its petition for review of that decision. 2 ¶3 In declining to consider this argument on review, the majority correctly states that enforcement proceedings are not to be used to revisit the merits of the underlying appeal. However, a party may raise subject matter jurisdiction at any time to collaterally attack a final judgment if the lack of jurisdiction directly implicates issues of sovereign immunity. Gonzalez v. Department of Transportation , 551 F.3d 1372 , 1379 -80 (Fed. Cir. 2009) (finding that the Board did not err in entertaining a collateral attack on its previous award of back pay to the appellant because the Board did not have jurisdiction to order the Federal Aviation Administration to pay back pay to its employees); superseded by statute on other gr ounds as recognized in DeSantis v. Merit Systems Protection Board , 826 F.3d 1369 , 1371 (Fed. Cir. 2 016); Sobol v. U.S. Postal Service , 68 M.S.P.R. 611, 614 (1995) (vacating the addendum initial decision for failure to demonstrate underlying jurisdiction where no statute or regulation conferred Board jurisdiction over the reduction -in-force reassignment of a nonpreference -eligible Postal Service employee). Here, the agency’s argument that the Board lacked jurisdiction to award back pay because it did not have the authority to order the agency to reassign the appellant where no policy provided for such a reassignment implicates similar issues of sovereign immunity. Under these circumstances, the agency is not barred from collaterall y attacking the Board’s final decision directing the appellant ’s reassignment. ¶4 The record in this case, along with Board and court precedent, support a finding that the administrative judge in fact lacked the authority to order the appellant’s reassignme nt. The Board has held that it does not have the authority to determine whether reassignment or a lesser penalty would be appropriate in the absence of an agency policy or regulation obligating reassignment. See Radcliffe v. Department of Transportation , 57 M.S.P.R. 237 , 241 (1993) (finding that where the satisfactory completion of training is a condition of employment, and there is no agency policy manifested by regulation obligating reassignment, the Board has no authority to determine whether reassignment or a lesser penalty 3 would be appropriate ); cf. Penland v. Department of the Interior , 115 M.S.P.R. 474, ¶ 10 (2010) (considering the fac t that no rule or regulation required the appellant’s reassignment upon the loss of his pilot authorization). This reasoning is predicated on the Federal Circuit’s observation in Griffin v. Defense Mapping Agency , 864 F.2d 1579 , 1581 (Fed. Cir. 1989), that when an appellant has failed to obta in a security clearance, it was not “aware of any other statutory requirement to find a position for an em ployee who fails to qualify for the job he was hired to do” ; see also Ryan v. Department of Homeland Security , 793 F.3d 1368 , 1373 (Fed. Cir. 20 15) (stating that the court’s decisions considering a mitigation analysis have involved penalties for misconduct rather than a loss of a required qualification for employment). Here, the administrative judge found, based on the deciding official’s undispu ted testimony, that the agency does not have a policy that required the appellant’s reassignment following the loss of his ability to carry a Government credit card which resulted in his no longer meeting the requirements of his Federal Air Marshal positio n. Scere v. Department of Homeland Security , MSPB Docket No. NY-0752 -14-0157 -I-1, Initial Decision at 13 (Nov. 30, 2015). ¶5 Because the administrative judge sustained the charge of failing to meet a condition of employment, and because she did not have th e authority to order the appellant ’s reassignment, she was required to sustain the removal action. As such, she erred in finding that the removal action was unjustified and unwarranted, as required by 5 U.S.C. § 5596 (b)(1) of the Back Pay Act. For that reason, the administrative judge did not issue an enforceable order that would entitle the appellant to back pay. 4 ¶6 Accordingly, I would grant the agency’s petition for review, reverse the complian ce initial decision and deny the appellant’s petition for enforcement. /s/ Tristan L. Leavitt Member	SCERE_JOHN_ALLAN_NY_0752_14_0157_C_1_ORDER_REDACTED_2026272.pdf	2023-02-21	null	NY-0752	NP
3,516	https://www.mspb.gov/decisions/nonprecedential/VILCA_TINA_C_DE_0752_20_0272_I_1_FINAL_ORDER_2003711.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TINA C. VILCA, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DE-0752 -20-0272 -I-1 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tina C. Vilca , Monument, Colorado, pro se. Rebecca E. Pope , Atlanta , Georgia , for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant ha s filed a petition for review of the initial decision, which found that (1) the agency proved the charges of disruptive conduct, failure to cooperate, and failure to follow leave procedures, (2) the appellant did not prove any of her affirmative defenses, and (3) removal was an appropriate penalty. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretatio n 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 Re gulations, 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 1201.1 15 for granting the petition for review. Therefore, we DENY the petition for review. We MODIFY the initial decision to clarify and supplement the administrative judge’s analysis of the penalty and the appellant’s affirmative defenses of reprisal and disa bility discrimination. Except as expressly MODIFIED herein, we AFFIRM the initial decision. BACKGROUND ¶2 The following facts, as recited in the initial decision, are generally undisputed. Initial Appeal File (IAF), Tab 63, Initial Decision (ID). The appellant was appointed as a Writer -Editor with the agency’s Intelligence and Analysis Front Office on September 1, 2019. ID at 2, 5; IAF, Tab 10 at 57. The agency placed the appellant on administrative leave on February 11, 2020, because of concerning st atements that she made to the reasonable accommodation specialist on or around February 6, 2020. ID at 12 -13; IAF, Tab 41 at 20 -21. Following an investigation, the agency proposed her removal based on charges of disruptive conduct, failure to cooperate, and failure to follow leave procedures. ID at 2, 13 -14; IAF, Tab 10 at 45 -53. The deciding official issued a decision that sustained all three charges and upheld the removal, effective April 17, 2020. ID 3 at 2; IAF, Tab 10 at 26 -34, Tab 37 at 4 . The app ellant filed this appeal and requested a hearing. ID at 1 -2; IAF, Tab 1. The appellant subsequently withdrew her hearing request. ID at 2; IAF, Tab 19 at 1. ¶3 The administrative judge issued an initial decision based on the written record in which she a ffirmed the removal action. ID at 2 -3. In pertinent part, the administrative judge found that (1) the agency proved all the charges and specifications (except for one specification in the failure to follow leave procedures charge), (2) the agency provide d the appellant with due process, (3) the appellant failed to prove her affirmative defenses of harmful procedural error, reprisal for requesting an accommodation and for filing an equal employment opportunity (EEO) complaint, and disability discrimination (failure to accommodate and disparate treatment), (4) the agency proved nexus, and (5) removal was an appropriate penalty for the sustained misconduct. ID at 14-46. The appellant has filed a petition for review, and the agency has filed a response. Pet ition for Review (PFR) File, Tabs 3, 5. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 The Transportation Safety Administration (TSA) is not subject to the provisions of 5 U.S.C. chapter 75. Winlock v. Department of Homeland Security , 110 M.S.P.R. 521, ¶ 5 (2009), aff’d , 370 F. App’x 119 (Fed. Cir. 2010). Instead, TSA Management Directive (MD) 1100.75 -3, entitled “Addressing Unacceptable Performance and Conduct,” applies to this appeal and sets forth policies and procedures for the agency’s use of “non -disciplinary, corrective, disciplinary, and adverse actions to address unacceptable employee performance and cond uct.” Id., ¶ 6 (citing to MD 1100.75 -3 by its prior title of “Addressing Conduct and Performance Problems”); IAF, Tab 10 at 129. Under MD 1100.75 -3, the agency must prove by preponderant evidence2 that its action is for such cause as will 2 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a purported or 4 promote the eff iciency of the service, there is a nexus between a legitimate Government interest and the matter that forms the basis for the action, and the penalty is appropriate, taking into account the relevant factors under Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981), and any other relevant considerations. Winlock , 110 M.S.P.R. 521 , ¶ 11. We affirm the administrative judge’s conclusion that the agency proved all three charges by preponderant evidence. Disruptive conduct charge ¶5 In the single specification of the disruptive conduct charge, the agency alleged that the appellant made the following statements to the reasonable accommodation specialist during a telephone call on February 6, 2020: “I need to get away from my superviso r or I am going to flip ou[t] and hurt him or someone else and go to jail and lose my job, he reminds me of an ex -boyfriend that won’t leave you alone and it’s a little stalkerish.” IAF, Tab 10 at 26. The administrative judge evaluated the charge as a th reat under Metz v. Department of the Treasury , 780 F.2d 1001 , 1004 (Fed. Cir. 1986) , and found that the agency proved that the appellant made th e statements in question and they were actionable threats under Metz . ID at 14 -20. Accordingly, the administrative judge found that the agency proved the specification and charge. ID at 20. ¶6 On review, the appellant denies threatening her supervisor. PF R File, Tab 3 at 11. Her arguments regarding the administrative judge’s analysis of this charge largely involved the credibility of the reasonable accommodation specialist and can be summarized as follows: (1) the charge is based on hearsay evidence; (2) the administrative judge’s analysis did not apply all of the factors for evaluating witness credibility under Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987), including witness demeanor, because she did not hold a hearing; (3) the record does not contain a sworn stat ement from the contested fact is more l ikely to be true than untrue. 5 C.F.R. § 1201.4 (q); IAF, Tab 10 at 141. 5 reasonable accommodation specialist; and (4) the agency did not provide evidence that the reasonable accommodation specialist was a “respectable character witness.” PFR File, Tab 3 at 6 -13. These arguments are not persuasive. ¶7 The appellan t is correct that the reasonable accommodation specialist’s email about the appellant’s statements was hearsay evidence. However, h earsay evidence is admissible in Board proceedings and the assessment of its probative value necessarily depends on the circ umstances of each case. Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-84 (1981). ¶8 The reason that the administrative judge was unable to evaluate witness demeanor was because the appellant withdrew her request for a hearing. IAF, Tab 22 at 1. The appellant’s argument that the agency should have presented evidence through “video technology,” or tape-recorded telephonic depositions, is not persuasive because the appeal would be decided on the written record. PFR File, Tab 3 at 12 -13. ¶9 The administrative judge identified the Hillen factors for assessing credibility and the factors that affect the weight to be accorded to hearsay evidenc e in the initial decision. ID at 4 -5. The administrative judge acknowledged that the record does not contain a sworn statement from the reasonable accommodation specialist. ID at 15 -16. Instead, she noted that the agency relied on an email that the rea sonable accommodation specialist sent “immediate[ly]” to the Workplace Violence Prevention Program, which the reasonable accommodation specialist confirmed was accurate in a subsequent interview with the agency investigator. ID at 16 -17; IAF, Tab 27 at 9. The administrative judge noted that the reasonable accommodation specialist’s correspondence with the Workplace Violence Prevention Program indicated that the appellant’s responses “concerned” her but that she was “unsure how to move forward” because she was “unable to ascertain if the employee [was] saying this to be playful or if she really mean[t] it.” ID at 16. During the investigation, the reasonable accommodation specialist described the appellant’s demeanor during 6 the telephone conversation as “h yperagitated and frustrated” and “animated and desperate – trying to convey how frustrated she was with her supervisor.” Id.; IAF, Tab 27 at 9. ¶10 The administrative judge noted that the appellant did not deny making the statements in question as described in the specification. ID at 16; IAF, Tab 10 at 35-36, Tab 39. She determined that the reasonable accommodation specialist, other agency officials, and the appellant’s supervisor (the target of her statements) took the appellant’s statements seriously as a potential threat. ID at 17-18. She considered the context in which the statements were made, namely that the appellant was “beyond frustrated” with her supervisor for discontinuing her temporary schedule, denying her request for a reasonable accommoda tion, and attempting to ensure that she was reporting for work as scheduled, completing the work assigned to her, and following agency guidelines. ID at 19. The administrative judge concluded that it was unlikely that the appellant was “venting” to the r easonable accommodation specialist because they were neither friends nor colleagues with a prior relationship at the time of the call. Id. ¶11 Under the circumstances, the administrative judge properly evaluated the Metz factors and the relevant factors fo r assessing the probative value of hearsay evidence, and we agree with her decision to sustain this specification and charge.3 3 Because the appellant’s statements occurred in the context of a conversation with a reasonable accommodation spe cialist about the agency’s decision to deny her requested accommodation, among other things, we have considered the Board’s prior holding that certain intemperate employee comments, which would otherwise support disciplinary action, will not support discip linary action if made in certain emotional, confrontation contexts, such as the grievance process or the EEO counseling process. Hamilton v. Department of Veterans Affairs , 115 M.S.P.R. 673 , ¶ 11 (2011) (citing Daigle v. Department of Veterans Affairs , 84 M.S.P.R. 625 , 628 (1999), and Special Counsel v. Nielson , 71 M.S.P.R. 161 , 175 -76 (1996)). However, this holding is inapplicable t o this case because the appellant was not merely venting about her supervisor or his decision to deny her accommodation request; rather, the appellant’s statements were appropriately construed by the reasonable accommodation specialist and other agency officials as a threat. See, e.g. , Berkner v. Department of Commerce , 116 M.S.P.R. 277 , ¶¶ 2-17 (2011) (describing Ms. Berkner’s stateme nts to the union Chief Steward during 7 The Board will not disturb an administrative judge’s findings when, as here, she considered the evidence as a whole, drew appro priate inferences, and made reasoned conclusions on issues of credibility. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). We have considered the appellant’s remaining arguments on review regarding this charge, but a different outcome is not warranted. Failure to cooperate charge ¶12 The agency alleged in specification one that, on February 25, 26, and 27, 2020, and on March 1, 2020, the appellant failed to comply after an Inquiry Officer contacted her “regarding [her] requirement to comply with TSA policy and cooperate with the TSA management inquiry regarding the [disruptive conduct] incident.” IAF, Tab 10 at 45. The administrative judge noted that the agency mu st prove that the appellant was contacted to provide information as part of an investigation, and she failed to cooperate with the management inquiry. ID at 20. The administrative judge found that the relevant events occurred as follows: the Inquiry Off icer contacted the appellant to schedule an interview; the appellant canceled the scheduled interview because she was seeking a representative; the Inquiry Officer initially provided the appellant with a designation of representative form but was later adv ised that she was not entitled to a representative;4 the Inquiry Officer advised the appellant that his deadline to complete the investigation was March 3, 2020; the appellant told him that she was a meeting about a then -pending discrimination complaint threatening suicide and broadly indicating a willingness to harm multiple agency employees if the agency removed her, distinguishing Ms. Berkner’s statements from Mr. Daigle’s conditional statements and other statements to an EEO counselor about his supervisor, and affirming Ms. Berkner’s removal based on a single charge of making inappropriate statements); Hamilton , 115 M.S.P.R. 673 , ¶ 11 (stating that an employee generally cannot be discharged for rude or impertinent conduct in the course of presenting grievances absent gross insubordinati on or threats of physical harm). 4 The appellant was not a member of the bargaining unit. IAF, Tab 10 at 24. 8 trying to find an attorney; and she did not provide a stat ement to the Inquiry Officer or otherwise participate in the investigative interview by the March 3, 2020 deadline. ID at 20-21. ¶13 The administrative judge evaluated the appellant’s argument that she was entitled to representation under agency policy MD 1 100.63 -3, which allows employees to have representation in “[r]esponding to an adverse action,” but concluded that placement on administrative leave was not an adverse action.5 ID at 21 -22. The administrative judge addressed the appellant’s concerns abou t possible implications to her Fifth Amendment rights, but she found that those concerns did not justify the appellant’s failure to appear for the investigative interview. ID at 22 -23. The administrative judge concluded that the agency proved that it con tacted the appellant to participate in the investigation and she failed to participate in that investigation. Id. ¶14 The appellant asserts on review that she “never stated [that] she would not participate in the investigation”; rather, she contends that she needed and requested the assistance of an attorney. PFR File, Tab 3 at 19. Nevertheless, the appellant was required to meet with the investigator, and she did not meet with him or otherwise provide him with a statement by the deadline that he had 5 The appellant challenges this finding on review, arguing that she suffered an “adverse employment action” and that we should consider the plac ement on administrative leave as an adverse action because it “coincided with [her] termination.” PFR File, Tab 3 at 20-22. As support for this argument, she relies on the U.S. Supreme Court’s definition of a tangible employment action, i.e., “ a signific ant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 20-21 (citing Burlington Indus tries , Inc. v. Ellerth , 524 U.S. 742 , 761 (1998)). However, that terminology was used by the Court to discuss vicarious liability in a sexual harassment case and is not applicable to this removal appeal. We agree with the administrative judge that placement on paid administrative leave is not an adverse action. IAF, Tab 10 at 139 (defining an “adverse action” in the TSA Handbook to MD No. 1100.75 -3 as a “suspension of more than 14 days, [] an involuntary demotion for performance/conduct, or a removal”); cf. 5 U.S.C. § 7512 (defining an adverse action as a removal, a suspension for more than 1 4 days, a reduction in grade or pay, and a furlough of 30 days or less). 9 previou sly identified. We therefore agree with the administrative judge that the agency proved that the appellant failed to cooperate as described in this specification. ¶15 The appellant does not challenge the administrative judge’s analysis of specification two of this charge involving allegations that, in response to her supervisor’s emails asking for an update on two projects, the appellant stated, “No update” and “stop harassing me.” ID at 23 -24; IAF, Tab 10 at 45. We affirm the administrative judge’s decisi on to sustain this specification. We also affirm the administrative judge’s decision to sustain the failure to cooperate charge based on the two sustained specifications. Failure to follow leave procedures charge ¶16 The appellant does not appear to challen ge the administrative judge’s conclusion that the agency proved two of the three specifications of the failure to follow leave procedures charge or the decision to sustain that charge. We affirm the administrative judge’s decision to sustain the charge ba sed on the two sustained specifications. ID at 24 -29; see Burroughs v. Department of the Army, 918 F.2d 170 , 172 (Fed. Cir. 1990) (holding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge). Having sustained the three charges, we now turn to the appellant’s affir mative defenses. We affirm, as modified, the administrative judge’s conclusion that the appellant did not prove that the agency violated her due process rights, committed harmful procedural error, retaliated against her, or discriminated against her base d on her disability. ¶17 The administrative judge found that the agency afforded the appellant due process, and the appellant did not prove her claims of harmful procedural error, reprisal, or disability discrimination (based on failure to accommodate and disparate treatment). ID at 29 -42. The appellant challenges on review most of 10 the administrative judge’s findings in this regard. We will address her arguments in turn. Due process/harmful procedural error ¶18 In the initial decision, the administrative judge a ddressed the appellant’s claim that the deciding official considered new and material information that she did not receive (recommendations from the investigation), and she did not have a meaningful opportunity to respond to the notice of proposed removal because the deciding official considered a February 4, 2020 Letter of Counseling. ID at 30-31. The administrative judge found that the agency did not violate the appellant’s due process rights in either respect because there was no evidence that the inve stigative documents that she thought had been provided to the deciding official were even created —let alone considered —by the deciding official. ID at 30. Additionally, the appellant knew that the Letter of Counseling would be considered as proof that sh e was on notice of the policies that she had violated. ID at 30 -31; IAF, Tab 10 at 48 -49. ¶19 The administrative judge found no agency error in regard to the following claims made by the appellant: (1) the agency placed her on administrative leave “without e vidence and the supported appropriate documentation”; (2) agency officials told other people about her statements to the reasonable accommodation specialist; (3) the deciding official considered new and material information; and (4) she was not given an op portunity to respond to the proposed removal. ID at 31-33. The administrative judge considered the appellant’s contention that the administrative inquiry was incomplete and inadequate. ID at 33. Although the administrative judge assumed that the appell ant established an error in the application of the agency’s administrative investigation procedures in this regard, she concluded that the appellant failed to prove any prejudice or harm caused by the assumed error. Id. ¶20 Our analysis of the due process and harmful error issues presented is generally the same regardless of whether we apply 5 U.S.C. chapter 75 or the 11 agency’s policies. Regarding due process, the agency’s Handbook to MD 1100.75 -3, like 5 U.S.C. chapter 75, r equires the agency to give an employee written notice of its proposed action, an opportunity to respond, and written notice of the decision. Compare IAF, Tab 10 at 142 , with 5 U.S.C. § 7513 . MD 1100.75 -3 also states that failure to follow the provisions of the directive, the Handbook, or its appendices may be grounds for reversal of an agency action only if such failure caused the agency to reach a conclusion different from the one it would have r eached in the absence of the failure. Compare IAF, Tab 10 at 134, with 5 C.F.R. § 1201.4 (r) (definition of harmful error). ¶21 We have considered the appellant’s arguments on review regardin g these issues, but they do not warrant a different outcome. Despite the appellant’s contention that the agency erred by conducting an incomplete investigation or by having any deficiencies in its report or paperwork, she has not met her burden to show th at the agency likely would have reached a different conclusion in the absence or cure of the error. PFR File, Tab 3 at 13 -14; see Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681, 685 (1991). Regarding the appellant’s contention that she was not given an adequate opportunity to rebut the notice of proposed removal, PFR File, Tab 3 at 15, the record reflects that she responded i n writing to the notice of proposed removal, and her response was considered by the deciding official, IAF, Tab 10 at 28, 35 -44. Moreover, there is no evidence that the deciding official relied on any documents that were not also provided to the appellant . Accordingly, we discern no error with the administrative judge’s analysis or conclusions on the issues of due process or harmful procedural error. Reprisal for requesting an a ccommodation and for engaging in EEO activity ¶22 In January 2020, the appellant requested a reasonable accommodation and initiated an EEO complaint. ID at 36; IAF, Tab 30 at 54, Tab 40 at 24 -31, Tab 48 at 29 -30. The administrative judge found that the proposing and deciding officials were aware of her reasonable accommodation reques t and her EEO 12 complaint, but she concluded that the appellant did not prove by preponderant evidence that reprisal for any such activity was a motivating factor in the agency’s decision to remove her. ID at 36 -38. The appellant does not appear to challen ge on review the administrative judge’s motivating factor analysis or the conclusion that the appellant did not prove reprisal for her accommodation request or other prior EEO activity , and we see no reason to disturb those findings . ¶23 In the initial decision, the administrative judge discussed the various methods of direct and circumstantial evidence, and she concluded that the appellant did not prove by preponderant evidence that her prior EEO activity was a motivating factor in the remo val action. ID at 34 -38. The Board has clarified that administrative judges should consider the evidence as a whole to determine if the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the conteste d personnel action. Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016), clarified by Pridgen v. Office of M anagement and Budget , 2022 MSPB 31 , ¶¶ 23-24. We find that, consistent with Pridgen and Gardner , the administrative judge prop erly considered the documentary and testimonial evidence as a whole in evaluating the appellant’s reprisal claims.6 6 Regarding the reprisal claim for prior EEO activity, we discern no error with the administrative judge’s finding that the appellant did not meet her initial burden to prove motiva ting factor. As such, we also find that the appellant would be unable to prove “but -for” causation. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20-22, 29 -33. As for the appellant’s claims of reprisal for prior reasonable accommodation requests and disability discrimination complaints, this type of claim requires that the appellant prove that the reprisal was a bu t-for cause of the adverse action. We find that because the administrative judge found that the appellant did not show that the reprisal was even a motivating factor, the appellant did not meet her burden to prove but -for causation. Id. at ¶¶ 46 -47. 13 Disability discrimination ¶24 In the initial decision, the administrative judge addressed the appellant’s claims of failure to accommodate and disparate treatment disability discrimination based on her diagnosis of adjustment disorder.7 ID at 38 -42. Regarding failure t o accommodate, the administrative judge found that the appellant was an individual with a disability.8 ID at 39. However, the administrative judge concluded that the appellant did not prove that the removal was based on her disability because she did not demonstrate (1) that the agency’s denial of her reasonable accommodation request was connected to the removal action and (2) that the misconduct resulted from any failure to provide a reasonable accommodation , or had the agency provided the requested accom modation, the misconduct would not have occurred. ID at 41. In pertinent part, t he administrative judge stated that the only misconduct that occurred after the denial of the appellant’s requested accommodation was her failure to cooperate with the invest igation9 and there was nothing in the record to indicate 7 Adju stment disorder is defined as “[t]he development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).” American Psychiatric Association , Diagnostic and Statistical Manual of Mental Disorders, 286 (5th ed. 2013). The symptoms or behaviors are “clinically significant” and can be evidenced by “[m]arked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context an d the cultural factors that might influence symptom severity and presentation” and/or “[s]ignificant impairment in social, occupational, or other important areas of functioning.” Id. 8 The administrative judge considered the appellant’s allegation, made u nder penalty of perjury, that the reasonable accommodation specialist speculated that her adjustment disorder was not a real disability. ID at 40 n.3. The administrative judge considered the evidence in the record and did not credit the appellant’s alleg ation in this regard. ID at 40 n.3 . 9 This appears to be a misstatement. According to the chronology described in the initial decision, the reasonable accommodation specialist advised the appellant on February 6, 2020, that the agency denied her reaso nable accommodation request and during a subsequent call that day, the appellant made the threatening statements as described in the disruptive conduct specification and charge. ID at 12 -13. 14 that her disability or need for an accommodation impeded her ability to cooperate in that investigation. Id. Regarding disparate treatment, the administrative judge applied a mixed -motive analysis, found that the record was devoid of any evidence that the proposing or deciding officials were motivated by discriminatory intent, noted that the record contains no evidence that a similarly situated employee who was not disabled but engaged in similar mi sconduct was treated differently from the appellant, and concluded that the appellant did not prove this claim. ID at 41 -42. ¶25 On review, the appellant asserts that the agency failed to provide her with a reasonable accommodation, including while she was on administrative leave. PFR File, Tab 3 at 16. She also asserts —for the first time —that her disability prevented her from participating in the investigation.10 Id. To this end, she contends generically and without support that “[i]ndividuals with menta l disabilities are vulnerable to making false confessions under interrogation, prompting a cavalcade of devastating consequences for both the individual confessors and the cause of justice.” Id. at 17. She cites to 42 U.S.C. § 12132 (1990) to support her argument that she was entitled to an accommodation. Id. at 18. She appears to contend that her request for an attorney to assist her during the investigative process was a request for a reason able accommodation. See id. at 19 -20. She further asserts that, because of her disability, her inability to have representation during the investigative interview process “[could] have resulted in conviction with actual imprisonment or a suspended term o f imprisonment.” Id. at 20. 10 The Board generally will not consider an argument raised for t he first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016); 5 C.F.R. § 1201.115 (d). However, we will address this argument because the appellant is pro se, and she appears to be responding to the administrative judge ’s statement in the initial decision that there was nothing in the record to indicate that her disability or need for a reasonable ac commodation impeded her ability to cooperate in the investigation. ID at 41. 15 ¶26 As a preliminary matter, we discern no error with the administrative judge’s conclusion that the appellant suffers from adjustment disorder, which affected areas such as thinking, concentrating, and communicating, and she is therefore an individual with a disability. ID at 39. ¶27 Although the appellant does not appear to specifically challenge on review the administrative judge’s analysis of her disparate treatment disability discrimination claim , we modify the initial decisio n to supplement the administrative judge’s analysis of this claim. The administrative judge relied on Southerland v. Department of Defense , 119 M.S.P.R. 566 (2013), to conclude that a mixed -motive analysis was the appropriate legal standard, and she found that the appellant did not prove this claim,11 ID at 41 -42. In Pridgen, 2022 MSPB 31 , ¶¶ 35-42, the Board clarified t he proper standard for analyzing a status -based disability discrimination claim. We modify the initial decision accordingly. Under both Southerland and Pridgen , however, the appellant bears the initial burden to show that her disability was a motivating factor in the removal action. Pridgen , 2022 MSPB 31 , ¶ 40; Southerland , 119 M.S.P.R. 566 , ¶¶ 18, 23. We discern no error with the administrative judge’s conclusion that the appellant did not prove that her disability was a motiva ting factor in the removal action. ID at 41-42. Because the appellant did not meet her initial burden, we do not reach the question of whether her disability was a “but -for” cause of the removal action. See Pridgen , 2022 MSPB 31 , ¶¶ 40, 42 . ¶28 Regarding the failure to accommodate claim, a different outcome is not warranted . On January 20, 2020, the appellant requested an accommod ation of 11 Under a mixed -motive analysis, an employee is entitled to some relief if her disability was a motivating factor in the decision, even if other factors also motivated the pract ice. Southerland , 119 M.S.P.R. 566 , ¶ 23. An agency may limit the extent of the remedy if it proves by clear and convincing evidence that it would have taken the same action absent the impermissible motivating factor. Id., ¶¶ 23-25. 16 telework 3 days per week based on her adjustment disorder.12 IAF, Tab 40 at 24-31. The supporting documentation referenced her diagnosis, indicated that “certain environments can have [an impact] on her emotional well[ -]being,” and stated that the appellant should be allowed to “telework as much as is reasonably possible.” Id. at 25. The agenc y denied her request for 3 days per week of telework, but it offered her 1 day per week of telework as an accommodation. IAF, Tab 46 at 29 -30. The appellant declined this accommodation and was evidently unwilling to discuss other alternative s. Id. We view the appellant’s unwillingness to discuss any other alternatives follow ing the agency’s offer of 1 day per week of telework as a failure to cooperate in the interactive process. See Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 21 (2014) (finding that the appellant failed to establish that the agency violated its duty of reasonable accommodation because sh e was not entitled to the accommodation of her choice and because the agency acted within its discretion to offer her reasonable and effective accommodations, which she declined); see also Simpson v. U.S. Postal Service , 113 M.S.P.R. 346, ¶ 16 (2010) (noting that the appellant was required to cooperate in the interactive process). ¶29 Moreover, we are not persuaded that the appellant’s disability prevented her from participating in the investigation or that her efforts to obtain an attorney for the investigative interview should have been construed by the agency as a reasonable accommodation request. The statute at 42 U.S.C. § 12132 (1990) states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activiti es of a public entity, or be subjected to discrimination by any such entity.” The appellant asserts, without support, that 12 The appellant’s counselor stated that she was diagnosed with an adjustment disorder with mixed emotional features claimed as combat stress in 2010. IAF, Tab 40 at 25. Records from the Department of Veterans Affairs show that the appellant was rated 30% disabled based on this condition in April 2010, and her rating was increased to 70% in May 2016. Id. at 26 -29. 17 Title II of the ADA “generally applies to interrogation of the mentally disabled and proposed evidence -based options for reasonable modification of interrogation practices to reduce the risk of false confessions.” PFR File, Tab 3 at 18. Even if true, her communications with the Inquiry Officer regarding her efforts to obtain representation for the investigative interview did not stat e or even imply that she was seeking representation due to her medical condition or any concern about the role that her medical condition would play during any such interview. IAF, Tab 27 at 16 -21. Moreover, the January 2020 accommodation request and associated medical documentation did not put the agency on notice that her medical condition somehow impacted her ability to attend, let alone participate in, the investigative interview. There is also no evidence that she requested any additional accommodat ion when she was on administrative leave. Having just requested an accommodation in January 2020, IAF, Tab 40 at 24 -31, the appellant was familiar with the accommodation process and how to make such a request. ¶30 Finally, the relevant anti -discrimination s tatutes do not immunize disabled employees from being disciplined for misconduct in the workplace, provided the agency would impose the same discipline on an employee without a disability. Burton v. U.S. Postal Service , 112 M.S.P.R. 115 , ¶ 16 (2009); Laniewicz v. Department of Veterans Affairs , 83 M.S.P.R. 477 , ¶ 5 (1999 ). For these reasons, we affirm the administrative judge’s conclusion that the appellant did not prove her failure to accommodate claim. Penalty13 ¶31 In the initia l decision, the administrative judge stated that, when the Board sustains an agency’s charges, it will defer to the agency’s penalty unless it exceeds the range of allowable punishment by statute or regulation, or unless the 13 The app ellant does not challenge the administrative judge’s finding that the agency proved nexus because the misconduct occurred at work or in direct connection to her work and her misconduct affected management’s trust and confidence in her ability to perform he r duties. ID at 42. We affirm this conclusion. 18 penalty is so harsh and unconsc ionably disproportionate to the offense that it amounts to an abuse of discretion. ID at 43. The administrative judge found that the deciding official considered the relevant Douglas factors, and there was no basis on which to override his decision or to conclude that the penalty was wholly unwarranted. ID at 44 -45. Because we have affirmed the administrative judge’s finding that the agency proved all three charges, but it did not prove all three specifications of the failure to follow leave procedures charge, we modify the initial decision to apply the following, slightly different legal standard: when all of the agency’s charges are sustained, but some of the underlying specifications are not sustained, the agency’s penalty determination is entitled t o deference and only should be reviewed to determine whether it is within the parameters of reasonableness.14 Payne v. U.S. Postal Service , 72 M.S.P.R. 646 , 650 (1996). ¶32 On review, the appellant argues that removal was an excessive and unreasonable penalty. PFR File, Tab 3 at 24. For example, she asserts that the administrative judge did not consider mitigating and aggravating facto rs. Id. at 24-25. In this regard, she states that she had no prior disciplinary record. Id. at 25. The administrative judge discussed the factors considered by the deciding official in the initial decision. ID at 44 -45; IAF, Tab 26 at 30 -31. In parti cular, the administrative judge noted that the deciding official considered the appellant’s 10 years of Federal service and her military service, which the deciding official said were mitigating factors. ID at 45; IAF, Tab 10 at 31. However, the decision letter did not explicitly consider the appellant’s lack of prior discipline as a mitigating factor. We have considered the appellant’s lack of prior discipline as a mitigating factor, but we conclude that a different outcome is not warranted. 14 The administrative judge’s recitation of a different legal standard in the initial decision is not prejudicial to the appellant’s substantive rights and provides no basis for reversal of the initial deci sion. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). 19 ¶33 The appella nt also contends that the agency’s table of penalties states that the charge of disruptive conduct does not warrant removal but only a 5 -day suspension as a first offense. PFR File, Tab 3 at 22. The appellant misstates the record. The agency’s Table of Offenses and Penalties states that, for a first offense of disruptive conduct, the penalty may range from a “5 -day Suspension to Removal.” IAF, Tab 46 at 41. Thus, this argument is not persuasive. ¶34 The appellant further contends that the administrative ju dge “failed to uphold the agency policy on progressive discipline.” PFR File, Tab 3 at 23. Here, again, the appellant misstates the evidence. The agency’s Table of Offenses and Penalties states that, although the agency “policy favors progressive discip line, where appropriate, if the misconduct is egregious enough or is accompanied by sufficiently aggravating circumstances, progressive discipline may be inappropriate and [r]emoval . . . would be warranted for a first offense.”15 IAF, Tab 46 at 33. Becau se the sustained misconduct, particularly the disruptive conduct charge, is egregious, we discern no error with the agency’s decision that removal is warranted under the circumstances. ¶35 The U.S. Court of Appeals for the Federal Circuit has held that “when mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, this must be taken into account when taking an adverse action against the employee.” Malloy v. U.S. Postal Service , 578 F.3d 1351 , 1356 (Fed. Cir. 2009) . Although not raised by the appellant, we modify the initial decision to consider her adjustment disorder as a mitigating factor. Even if we find that her medical condition is entitled to some weight as a mitigating factor, the Board has found that a medical or mental impairment is not a significant mitigating factor in the absence of evidence that the impairment can 15 The appellant also contends that she was never issued a performance improvement plan or a warning on work performance issues. PFR File, Tab 3 at 23. This argument does not warrant a different outcome because the appellant was removed for misconduct and not unacceptable performance. 20 be remedied or controlled, i.e., when the potential for rehabilitation is poor. Mingledough v. Department of Veterans Affairs , 88 M.S.P.R. 452, ¶ 12 (2001), review dismissed , 35 F. App’x 873 (Fed. Cir. 2002). The appellant has offered no evidence that her condition has been remedied or controlled, and she has not offered persuasive evidence to challenge the deciding official’s conclusion tha t her potential for rehabilitation was “highly unlikely.” IAF, Tab 10 at 31. We also find that her medical condition does not outweigh other relevant factors, including the nature and seriousness of the offenses, particularly as it relates to the disrupt ive conduct charge. Accordingly, for the reasons described in the initial decision, and as modified and supplemented herein, we conclude that the removal decision did not exceed the bounds of reasonableness for the sustained misconduct. NOTICE OF APPEAL RIGHTS16 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 deci sion. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although 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 desc ribed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek 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 16 Since the issuance of the initial decision in this matter, the Board may 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. 21 within the applicable time limit may result in the dismissal 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. 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. 22 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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: 23 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.17 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 17 The original statutory provision that provided for judicial review of certain whistleblower 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. 24 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washi ngton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/prob ono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	VILCA_TINA_C_DE_0752_20_0272_I_1_FINAL_ORDER_2003711.pdf	2023-02-17	null	DE-0752	NP
3,517	https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_D_DC_0752_21_0372_I_1_FINAL_ORDER_2003720.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES D. ADAMS, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-0752 -21-0372 -I-1 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles D. Adams , Herndon, Virginia, pro se. William Di Iorio , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal of the agency’s action revoking his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 security clearance .2 On petition for review, the appellant challenges the administrative judge’s jur isdictional determination . 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 r egulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, a nd the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, sectio n 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting t he petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b). 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 2 The appellant formerly worked for the Missile Defense Agency, a component of the Department of Defense, but the instant appeal was brought against the Defense Intelligence Agency, another component of the Department of Defense. 3 The appellant has filed numerous other petitions for review, which have been or will be addressed in separate decisions. 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possibl e choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U. S. Court of Appeals for the Federal Circuit, you may visit our 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 affected by an action that is appealable to the Board and that such action 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 claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 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. 2 0013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingto n, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the B oard’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 cou rt of 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 whistleblo wer reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ADAMS_CHARLES_D_DC_0752_21_0372_I_1_FINAL_ORDER_2003720.pdf	2023-02-17	null	DC-0752	NP
3,518	https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_3443_21_0137_I_1_FINAL_ORDER_2003733.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES DERECK ADAMS , Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-3443 -21-0137 -I-1 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles Dereck Adams , Herndon, Virginia, pro se. Paul Y. Kim , Redstone Arsenal, Alabama, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction . On petition for review, the appellant argues that the administrative judge erred in not accepting his appeal and adjudicating his attendant claims of discrimination . Generally, we grant petitions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new an d material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition 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). 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 l imits 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 wh ich option is most appropriate in any matter. 3 Please read carefully each of the three main possible choices of review below to decide which one applies to your par ticular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioner s and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney wi ll accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 4 were affected by an action that is appealable to the Board and that such act ion was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Cou rt of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requi ring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2 012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 cour t 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 t he U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	ADAMS_CHARLES_DERECK_DC_3443_21_0137_I_1_FINAL_ORDER_2003733.pdf	2023-02-17	null	DC-3443	NP
3,519	https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_0841_20_0295_I_1_FINAL_ORDER_2003746.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES DERECK ADAMS , Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0841 -20-0295 -I-1 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles Dereck Adams , Herndon, Virginia, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal challenging the correctness of his retirement annuity . On petition for review, the appellant argues that the Board does have jurisdiction over his claim . Generally, we grant petitions such as this 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material 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, sect ion 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 APPE AL 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 w ith which to file. 5 U.S.C. § 7703 (b). Although 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 wh ich option is most appropriate in any matter. 3 Please read carefully each of the three main poss ible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of i ssuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S . Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 4 were aff ected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a ci vil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 prep ayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issue s. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 revi ew to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pu rsuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 is suance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cour t of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court a t the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ADAMS_CHARLES_DERECK_DC_0841_20_0295_I_1_FINAL_ORDER_2003746.pdf	2023-02-17	null	DC-0841	NP
3,520	https://www.mspb.gov/decisions/nonprecedential/SEPULVEDA_ANGEL_M_DC_1221_21_0218_W_1_FINAL_ORDER_2003766.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANGEL M. SEPULVEDA, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DC-1221 -21-0218 -W-1 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Angel M. Sepulveda , Manassas, Virginia, pro se. Suzanne Nicole Nardone , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the February 23, 2021 initial decision, whic h dismissed his individual right of action appeal without prejudice 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 to refiling.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 init ial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence , was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their 2 During the pendency of this petition for review, the appellant’s individual right of action appeal was automatically refiled and again dismissed without prejudice to refiling. Sepulveda v. Department of Health and Human Services , MSPB Docket No. DC-1221 -21-0218 -W-2 (Initial Decision, Dec. 16, 2021). We issue a separate order regarding the appellant’s petition for review of that initial decision. 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 jurisdiction. If you wish to seek 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 question s about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district 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 5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method 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.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for ju dicial review of certain whistleblower claims by any court of 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, 20 17. 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 t he U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	SEPULVEDA_ANGEL_M_DC_1221_21_0218_W_1_FINAL_ORDER_2003766.pdf	2023-02-17	null	DC-1221	NP
3,521	https://www.mspb.gov/decisions/nonprecedential/SEPULVEDA_ANGEL_M_DC_1221_21_0218_W_2_FINAL_ORDER_2003770.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANGEL M. SEPULVEDA, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DC-1221 -21-0218 -W-2 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Angel M. Sepulveda , Manassas, Virginia, pro se. Suzanne Nicole Nardone , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the December 16, 2021 initial decision, whic h dismissed his refiled individual right of action appeal 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 without prejudice to refiling.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 d iligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 2 We issue a separate order regarding the appellant’s pet ition for review of the February 23, 2021 initial decision in Sepulveda v. Department of Health and Human Services , MSPB Docket No. DC -1221 -21-0218 -W-1. 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 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have question s about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requi ring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2 012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2 018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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/Co urt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SEPULVEDA_ANGEL_M_DC_1221_21_0218_W_2_FINAL_ORDER_2003770.pdf	2023-02-17	null	DC-1221	NP
3,522	https://www.mspb.gov/decisions/nonprecedential/BRIDGEFORD_KATHERINE_RENEE_AT_0714_21_0636_P_1_FINAL_ORDER_2003840.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KATHERINE RENEE BRID GEFORD, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -21-0636 -P-1 DATE: February 17, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Katherine Renee Bridgeford , Augusta, Georgia, pro se. Kimberly Kaye Ward , Esquire, and Sophia E. Haynes , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Cha irman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed the appellant’s motion for damages as premature. On petition f or review, the appellant does not address the dismissal of her motion for damages 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 but argues that the Board should impose sa nctions against the agency for its failure to respond to the administrative judge’s acknowledgment order . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fac t; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision 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 availa ble when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 We also DENY the appellant’s request for sanctions. The administrative judge’s acknowledgment order mistakenly treated the appellant’s submission as a petition for enforcement of a Board final decision and instructed the agency to respond accordingly. Bridgeford v. Department of Veterans Affairs , MSPB Docket No. AT -0714 -21-0636 -P-1, Appeal File, Tab 2. There is no final decision in this matter awarding the appellant relief of any kind. Thus, there was no final order with which the agency could show compliance, as instructed. Accordingly, we find no bas is for sanctions pursuant to 5 C.F.R. § 1201.183 . 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S .C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regard ing which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the ap plicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a par ticular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you sub mit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additio nal information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regardi ng pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimi nation. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 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, y ou may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request w ith the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative rece ives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office o f Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have rai sed claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 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 fo r review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 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	BRIDGEFORD_KATHERINE_RENEE_AT_0714_21_0636_P_1_FINAL_ORDER_2003840.pdf	2023-02-17	null	AT-0714	NP
3,523	https://www.mspb.gov/decisions/nonprecedential/ATKINSON_JANICE_L_SF_0432_16_0418_I_1_REMAND_ORDER_2003304.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JANICE L. ATKINSON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0432 -16-0418 -I-1 DATE: February 16, 2023 THIS ORDER IS NONPRECEDENTIAL1 Ray Wilkins , St. Louis, Missouri, for the appellant. Joseph Manuel Briones , Esquire, Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her performance -based removal . For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision, and REMAND the case to the regional office for further adjudication consistent with 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021) . BACKGROUND ¶2 The following facts, as further detailed in the initial decision, are not in dispute. The appellant most recently held the position of Rating Veterans Service Representative in the agency’s San Diego office —a position that generally involved adjudicating claims for veterans’ benefits. Initial Appeal File (IAF), Tab 11 at 51 -52, Tab 35, Initial Decision (ID) at 1 -2. The performance plan for that position included four critical elements, with one being “Quality.” ID at 2; IAF, Tab 11 at 51 -52. ¶3 In June 2014, the agency reassigned the appellant to a different team and, as a result, she began reporting to a new supervisor. ID at 12; IAF, Tab 21 at 2 -3. Beginning in March 2015, her new supervisor measured the appellant’s Qu ality and found that it fell below the acceptable accuracy rate of 92%. ID at 3. Subsequently, in June 2015, the agency placed the appellant on a 90 -day performance improvement plan (PIP). ID at 4; IAF, Tab 10 at 114 -18. ¶4 In November 2015, the agency pro posed the appellant’s removal, based on her failure to improve and demonstrate acceptable performance in the critical element of Quality. ID at 5 -6; IAF, Tab 10 at 34 -36. The deciding official sustained her removal, effective March 20, 2016. ID at 6; IA F, Tab 8 at 52 -55. ¶5 The appellant challenged her performance -based removal in the instant appeal. ID at 6. After developing the record and holding the requested hearing, the administrative judge affirmed the removal. She found that the agency met its burden to prove the charge, ID at 7 -13, and the appellant did not prove any of the affirmative defenses she asserted, ID at 13 -41. The administrative judge also found the appellant’s remaining arguments, concerning due process and mitigation of the penalty, unavailing. ID at 41 -42. 3 ¶6 The appellant has filed a petition for review, in which she challenges the administrative judge’s determination to sustain the charge. Petition for Review (PFR) File, Tab 1 at 2 -3. She also presents arguments pertaining to her selection for team reassignment in June 2014, a 90 -day acclimation period following this reassignment, and her participation in the Employee Assistance Program (EAP), all of which appear to be harmful error claims. Id. at 1-2. Finally, the appellant disagrees with the administrative judge’s denial of her disability discrimination claim while also asserting that the administrative judge failed to address the agency’s purported delay in issuing a decision on a reasonable accommodation request.2 Id. at 1-4. The agency has filed a response to the petition for review. PFR File, Tab 3. ANALYSIS Remand is required in light of Santos . ¶7 At the time the initial decision was issued, the Board’s case law stated that, to prevail in an appeal of a performance -based r emoval under chapter 43, the agency must establish the following by substantial evidence: (1) the Office of Personnel Management (OPM) approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appell ant the performance standards and critical elements of her position; (3) the appellant’s performance standards were valid under 5 U.S.C. § 4302 (b)(1); (4) the agency warned the appellant of the ina dequacies of her performance during the appraisal period and gave her a reasonable opportunity to demonstrate acceptable 2 The appellant does not challenge the administrative judge’s denial of her claim that the June 2014 reassignment was based on her disability and improper retaliation. IAF, Tab 21 at 2 -3, Tab 23 at 4. In addition, s he does not revisit the administrative judge’s denial of her due process claim or reassert that the penalty of removal should have been mitigated. We decline to revisit the administrative judge’s well -reasoned findings concerning these matters on review. ID at 33 -37, 39 -42; see Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 6 (2010) (observing that the Board has no authority to mitigate a removal taken under chapter 43). 4 performance; and (5) the appellant’s performance remained unacceptable in one or more of the critical elements for which she was provid ed an opportunity to demonstrate acceptable performance. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 5 (2010).3 Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4 (p). The administrative judge found that the agency proved these elements. ID at 7 -13. ¶8 On review, the appellant argues that the agency did not provide her with a meaningful opportunity to meet the appli cable performance standards, PFR File, Tab 1 at 3, implicating the fourth element described above.4 Specifically, the appellant contends that the agency did not provide her with “proper training,” a “90-day acclimation period after training,” or additiona l training required by her PIP and union agreement. Id. We are not persuaded. ¶9 In determining whether the agency has afforded an appellant a reasonable opportunity to demonstrate acceptable performance, relevant factors include the nature of the duties and responsibilities of her position, the performance deficiencies involved, and the amount of time which is sufficient to enable the employee to have an opportunity to demonstrate acceptable performance. Lee, 115 M.S.P.R. 533 , ¶ 32. However, the Board has recognized that an agency is not obligated to provide formal training to an employee to satisfy the requirement 3 We recognize that the administrative judge described the agency’s burden somewhat differently than we have in this decision. ID at 7 -8. However, the requirements remained the same. We are simply utilizing the description found in more recent Board decisions. See, e. g., White v. Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013); Lee, 115 M.S.P.R. 533 , ¶ 5 . 4 The administrative judge found that the agency met its burden regarding the other elements as well —OPM approved its appraisal system, the agency communicated the standards to the appellant, the standards were valid, and the appellant’s performance remaine d unacceptable. ID at 8 -12. The appellant’s petition for review contains no challenge to those findings , and we decline to disturb them. 5 that it provide a reas onable opportunity to improve. Corbett v. Department of the Air Force , 59 M.S.P.R. 288 , 290 (1993). ¶10 The administrative judge considere d the available evidence, including the PIP itself, the appellant’s testimony, her supervisor’s testimony, and PIP meeting notes, to find that the agency provided the appellant with a reasonable opportunity to improve. ID at 4 -5, 10 -13; see IAF, Tab 10 at 70, 72, 84, 105, 116-18, Tab 29, Hearing Compact Disc (HCD1) (testimony of the appellant and her supervisor). She found that, inter alia , the agency provided the appellant with a 90 -day PIP period, a mentor to answer technical questions throughout the PIP, and regular progress meetings. ID at 11 -12. ¶11 The administrative judge did not credit the appellant’s general assertion that the agency failed to provide her with appropriate training. ID at 12 -13. She noted that the appellant consistently denied the need for additional training in PIP meetings with her supervisor, as evidenced by numerous contemporaneous PIP meeting notes and hearing testimony. ID at 4 -5, 12 -13; compare IAF, Tab 10 at 117 (PIP notice, indicating that the appellant was fully trained b ut offering to consider any specific training needs if the appellant identified them), with id. at 70, 72, 84, 105 (contemporaneous notes from PIP progress meetings, indicating that the appellant repeatedly denied needing additional training), and HCD1 (testimony of the appellant’s supervisor). The appellant’s general reassertion that the agency failed to provide appropriate training does not warrant disturbing the administrative judge’s findings on that point. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (recognizing that the Board must defer to an administrative judge’s credibility determin ations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so). We agree with the administrative judge’s conclusion that the agency provided the appellant with a reasonable opportunity to improve. See Towne v. Department of the Air Force , 120 M.S.P.R. 6 239, ¶¶ 18 -20 (2013) (finding that an employee was provided with an opportunity to improve when she received detailed written feedback and her supervisor held regular meetings during the PIP to provide feedback and respond to questi ons). ¶12 Although the appellant has identified no basis for us to disturb the administrative judge’s findings regarding the agency proving the elements described above, we must remand this appeal for the agency to prove an additional element of its charge . During the pendency of the petition for review in this case, the U.S. Court of Appeals for the Federal Circuit held in Santos , 990 F.3d at 1360 -61, 1363 , that in addition to the five elements of the agency’s case set forth above, the agency must also “justi fy the institution of a PIP ” by proving by “substantial evidence that the employee’s performance was unacceptable . . . before the PIP. ” The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. Accordingly, we remand the appeal to give the parties the opportunity to present argument and additional evidence on whether the appellant’s performance during the period leading up to the PIP was unacceptable in one or more critical elements . See id, ¶¶ 15 -17. On remand, the adm inistrative judge shall accept argument and evidence on this issue and shall hold a supplemental hearing if appropriate. Id., ¶ 17. The appellant failed to establish a harmful procedural error. Training ¶13 As discussed above, the appellant raises allegations regarding her training before and during the PIP. PFR File, Tab 1 at 3. Specifically, she claims that following her June 2014 team reassignment the agency failed to provide her with “a 90 -day acclimation period” as required by agency policy. Id. at 3, 19-20. She also alleges that the agency did not comply with PIP training requirements set forth in the applicable collective bargaining agreement. Id. at 3. We have separately considered these as potential harmful error claims. Id. at 3, 19 -20; see 7 5 C.F.R. §§ 1201.4 (r), 1201.56(c)(1 ) (explaining that the Board must reverse an action if the appellant shows that the agency’s error in applying its procedures in arriving at its decision is 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). However, the arguments are unavailing for a number of reasons. ¶14 First, although the appellant did allege a number of harmful errors and training concerns below, it appears that these allegations were not among them. Compare PFR File, Tab 1 at 3, with IAF, Tab 21 at 6 -7, Tab 23 at 3 -5, Tab 25 at 2-4; see Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 ( 1980) (recognizing that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). Next, as to the appellant’s claim that she was not given training required by her union contract, a petition for review must contain sufficient specificity for the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review o f the record. Thompson v. Department of the Army , 122 M.S.P.R. 372 , ¶ 10 (2015). Because the appellant has failed to identi fy where the training provision is in the record or explain what it requires, we decline to consider this argument further. ¶15 Further, as to the 90 -day acclimation period, the appellant has provided a copy of the agency’s policy for the first time on review. PFR File, Tab 1 at 19; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (recognizing that the Board will not consider evidence submitted for the first time on review absent a showing that it was unavailable before the record was closed despite the party ’s due diligence). It provides, as applicable here, that individuals changing from one team to another will not be subject to any performance -based action for the first 90 days of their assignment. PFR File, Tab 1 at 19. Even if we were to consider the appellant’s new evidence and argument regarding the acclimation policy, we find that she has failed to identify any agency error. The policy is 8 inapplicable because it is dated after the agency proposed her removal, compare IAF, Tab 10 at 34-36 (November 2015 proposal to remove the appellant), with PFR File, Tab 1 at 19 (February 2016 memorandum with “[t]he purpose of . . . establish[ing] policy for the rotation and reassignment of employees”), and the agency did not propose the appellant’s removal within 90 days of her June 2014 team reassignment, IAF, Tab 21 at 3; PFR File, Tab 1 at 19. EAP ¶16 On review, the appellant also argues that the administrative judge erred in finding that that she only attended two EAP sessions. PFR File, Tab 1 at 2. She alleges that, as a result of her participation in the EAP, the agency’s collective bargaining agreement required that her removal be held in abeyance. Id. Again, we are not persuaded. ¶17 The appellant supports her argument with a new document, submitted for the fi rst time on review. Id. at 8. Although the document itself is dated after the initial decision, the information contained is not ne w—the document merely identifies seven dates on which the appellant attended appointments covered by the EAP, all of which occurred after the agency proposed her removal and before the close of record below. Id.; see Avansino , 3 M.S.P.R. at 214; see also Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989) (observing that to constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed). Moreover, even if the evidence were new, the appellant has failed to establish that it is material. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (finding that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outco me different from that of the initial decision). ¶18 The administrative judge recognized below the pertinent provision of the collective bargaining agreement. ID at 38 -39. While the provision indicates that the agency will hold proposed corrective actions in abeyance for an employee to 9 attend EAP sessions and successfully complete treatment, it further states that, “the [EAP] program is not intended to shield employees from corrective action in all instances.” IAF, Tab 23 at 10. The administrative judge f ound that the agency offered the appellant EAP assistance months earlier, but the appellant did not avail herself of that program until several months after the agency proposed her removal. ID at 39. Under the circumstances, the administrative judge conc luded that the appellant’s participation in the EAP was an attempt to shield herself from removal. Id. For that reason and others, the administrative judge found that the provision of the collective bargaining agreement regarding the EAP did not apply to the appellant’s situation. ID at 38 -39. The appellant’s evidence submitted for the first time on review does not support a different conclusion. PFR File, Tab 1 at 8. Seniority ¶19 The appellant also reasserts that her deficient performance was attributabl e to her June 2014 team reassignment and seniority rules dictated that a more junior coworker should have been reassigned instead of the appellant. Id. at 2. The administrative judge found on the record below that the appellant’s coworker had greater sen iority because she had been a Rating Veterans Service Representative longer than the appellant. ID at 37. ¶20 On review, the appellant submits a memorandum of understanding defining seniority as an employee’s enter -on-duty date with the regional office to w hich the appellant and her coworker were assigned. PFR File, Tab 1 at 12. However, she failed to present this evidence below. As previously recognized, the Board generally will not consider evidence submitted for the first time on review absent a showin g that it was unavailable before the record was closed despite the party’s due diligence. Avansino , 3 M.S.P.R. at 214. Because the appellant failed to show that this memorandum of understanding, which is dated February 2012, was 10 previously unavailable, w e decline to consider it. See PFR File, Tab 1 at 12. Accordingly, we find that she has failed state a basis for granting review.5 The appellant failed to establish disability discrimination.6 ¶21 The appellant’s final arguments on review concern her disability discrimination claim. She alleges that the administrative judge refused to recognize her as disabled, instead substituting her own opinion for that of the appellant’s physicians. PFR File, Tab 1 at 1 -4. This argument reflects a misunderstanding of the administrative judge’s analysis. ¶22 To prove disability discrimination, an appellant first must establish that she is an individual with a disability by showing that she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment, as that term is defined in the applicable regulations. Thome v. Department of Homeland Se curity , 122 M.S.P.R. 315 , ¶ 24 (2015). Despite the appellant’s suggestion to the contrary, the administrative judge found that the appellant met this requirement based on her depression and anxiety disorders. ID at 24. 5 Even if the appellant had shown that the agency committed procedural error in reassigning her , she failed to submit evidence that the error was harmful. See Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681, 685 (1991) (recognizing that harm ful error cannot be presumed; an ag ency 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). While the appellant alleged below that the Quality standard was easier to meet on her previous team, the standard was the same. IAF, Tab 10 at 5, 7. Further, less than a year before her reassignment, the appellant’s supervisor warned her that she was failin g on her production standard and threatened to place her on a PIP. IAF, Tab 21 at 2-3. Although the appellant was able to improve her performance and avoid being placed on a PIP, the circumstances do not suggest that the appellant likely would have been successful had she remained on her previous team. Id. at 3. 6 Below, the only discrimination claims the appellant presented were those based on disability. IAF, Tab 24 at 2 -3. Therefore, to the extent that the appellant is attempting to raise race or se x discrimination claims for the first time on review, see PFR File, Tab 1 at 4, we will not consider them, see Banks , 4 M.S.P.R. at 271. 11 ¶23 An appellant also must establish, inter alia, that she was a qualified individual with a disability. 29 U.S.C. § 794(a); see Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 10 (2014) (recognizing this requirement in the context of a disability discrimination claim based on a failure to accommodate); 29 C.F.R. § 1630.4 (a)(1) (prohibiting discrimination against such an individual). With exceptions not applicable he re, the term “qualified” means that the individual satisfies the requisite skill, experience, education and other job -related requirements of the employment position the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2 (m). The administrative judge found that the appellant failed to prove this element of her disability discrimination affirma tive defense because the record showed that she could not perform the essential “Quality” standard of her position with or without accommodation.7 ID at 24 -26. ¶24 In her petition, the appellant appears to concede that she was unable to meet the Quality stand ard of her position, and she has not identified any accommodation that would have allowed her to meet that standard. PFR File, Tab 1 at 3 -4. Instead, she suggests that the agency should have offered her a reassignment. Id. at 1, 4. However, the appella nt has failed to identify any position that was vacant and within her abilities. See Clemens , 120 M.S.P.R. 616 , ¶¶ 10, 17 (recogn izing that an appellant bears the burden of proving that a requested accommodation existed and was reasonable and finding that an appellant failed to meet that burden when he asserted that the agency could have reassigned him without identifying any availa ble positions). The administrative 7 The administrative judge further found that the appellant did not prove her allegations that the agency failed to acc ommodate her, ID at 26 -27, failed to follow its reasonable accommodation procedures, ID at 27 -28, or failed to follow its policies regarding reassignment as a last resort, ID at 28 -29. The administrative judge also found that the appellant failed to prove that any valid comparators were treated more favorably. ID at 30-33. Except for those arguments discussed herein, the appellant has not challenged these findings and we decline to disturb them. 12 judge considered two reassignment requests the appellant made prior to her removal. ID at 18 -25. The first was a request to be moved to a different team while maintaining her existing Rating Veterans Service Representa tive position, and the second was a request for reassignment to a Supervisory Veterans Service Representative position. IAF, Tab 9 at 78 -81, Tab 10 at 17, 19. The administrative judge found that the agency properly denied both requests because, inter ali a, each position had the same Quality standard —a standard the appellant was unable to meet. ID at 25; see Byrne v. Department of Labor , 106 M.S.P.R. 43, ¶ 7 (2007) (recognizing that reasonable accommodation does not require an agency to lower production or performance stan dards); Clemens v. Department of the Army , 104 M.S.P.R. 362 , ¶ 27 (2006) (same). In the absence of any argument or evidence to the contrary, we agree. Accordingly, we find no basis for disturbing the administrative judge’s findings concerning the alleged disability discrimination. ¶25 Separately, the appellant appears to reassert an argument she raised below, concerning the agency’s del ay in responding to her February 2, 2016 reasonable accommodation request. PFR File, Tab 1 at 4; see IAF, Tab 21 at 7. However, the relevance of this purported delay is not apparent under the circumstances, given that the appellant appears to concede tha t she could not perform the essential functions of her position, with or without accommodation. See supra , ¶ 24. Moreover, the policy the appellant relies on provides that accommodation requests “should ordinarily be processed within thirty (30) calendar days, not counting the time waiting for medical documentation.” PFR File, Tab 1 at 17. Although the administrative judge did not specifically address that policy, she did conclude that the agency responded to the appellant’s reasonable accommodation requests promptly, ID at 26, and we agree. The record shows that the agency quickly and continually engaged with the appellant, each time she requested accommodation. See, e.g ., IAF, Tab 11 at 54-64. Specific to the February 2, 2016 request she refers to o n review, the agency immediately responded, provided 13 interim accommodations, and continued to seek additional information from the appellant and her physician, up through her March 2016 removal. E.g., IAF, Tab 8 at 58 -62, Tab 9 at 14 -15, 41 -43, 53 -58. Th erefore, to the extent that the appellant suggests that this interactive process amounted to disability discrimination or some other dispositive impropriety, we are not persuaded. ¶26 In conclusion, the arguments the appellant presented on review are unavail ing. Nevertheless, we must remand this decision in light of Santos . On remand, the administrative judge shall accept argument and evidence on this issue and shall hold a supplemental hearing if appropriate. Lee, 2022 MSPB 11 , ¶ 17. The administrative judge shall then issue a new initial decision consistent with Santos . See id . If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate h er prior findings on the other elements of the agency’s case and the appellant’s affirmative defenses in the remand initial decision. See id . However, regardless of whether the agency meets its burden, if the argument or evidence on remand regarding the appellant’s pre -PIP performance affects the administrative judge’s analysis of the appellant’s affirmative defenses, she should address such argument or evidence in the remand initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (ex plaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on whi ch that reasoning rests). 14 ORDER ¶27 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ATKINSON_JANICE_L_SF_0432_16_0418_I_1_REMAND_ORDER_2003304.pdf	2023-02-16	null	SF-0432	NP
3,524	https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_HUNTLEY_MELLODY_ESTELLA_MARIA_CH_844E_22_0353_I_1_FINAL_ORDER_2003368.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MELLODY ESTELLA MARI A WILLIAMS HUNTLEY, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-844E -22-0353 -I-1 DATE: February 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mellody Estella Maria Williams Huntley , Glendale Heights, Illinois, pro se. Appeals Officer , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction . On 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 the appellant does not make any argumen ts, instead attaching a copy of the filings in the record and a copy of the Office of Personne l Management’s social media policy .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 st atute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of dis cretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulatio ns, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision.3 5 C.F.R. § 1201.113 (b). 2 The appellant has also filed appeals against the American Federation of Government Employees and the Federal Labor Relations Authority . Those claims will be addressed respectively in MSPB Docket Nos. CH-3443 -22-0349 -I-1 and CH -3443 -22-0350 -I-1. Furthermore, to the extent that the appellant seeks to challenge her removal from the Social Security Administration (SSA) , her removal is the subject matter of MSPB Docket No. CH -0752 -19-0568 -B-1, and will be addressed there . Finally, to the extent that she seeks to raise allegations of noncompliance against SSA , as found by the Board in Huntley v. Social Security Administration , MSPB Docket No. CH -0752 -19-0568 -I-2, Final Order at 4 -5 (June 21, 2022), because there is no settlement agreement in the record, the Board lacks jurisdiction over these claims . 3 The administrative judge erred in stating in his supplemental jurisdictional order that the appellant need only make a nonfrivolous allegation of jurisdiction . Initial Appeal File (IAF), Tab 9. Per the Board’s regulations at 5 C.F.R. § 1201.56 (b)(2)(i)(A), an appellant must establish the Board’s jurisdiction by preponderant evidence. See Reid v. Office of Personnel Management , 120 M.S.P.R. 83 , ¶ 6 (2013) (stating that the appellant must prove jurisdiction over hi s retirement appeal by preponderant evidence); Morin v. Office of Personnel Management , 107 M.S.P.R. 534 , ¶ 8 (2007) (same). Howe ver, to the extent that the administrative judge applied the nonfrivolous allegation standard, such error had no impact on the outcome of this case. In his original 3 NOTIC E 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 appropriat e forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which optio n is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately re view the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three ma in possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court jurisdictional order, the administrative judge set forth the correct legal standard, and t he appellant had two opportunities to present evidence and argument establishing jurisdiction. IAF, Tabs 3, 6 -10. Despite ample opportunity to establish jurisdiction, the appellant was unable to meet the less rigorous nonfrivolous allegation standard, an d thus, she cannot meet the more stringent preponderant evidence standard. Accordingly, the administrative judge’s error did not prejudice the appellant’s substantive rights and does not serve as a basis for reversal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984 ) (explaining that a n adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 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 op tion is most appropriate in any matter. 4 within 60 calendar days of the da te of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourt s.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endor ses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2 ); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 5 you do, then you must file with the district court no later than 30 calendar days after your representati ve receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all othe r issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 req uest for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judic ial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2 302(b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of all egations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals fo r 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 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 Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of a ppeals 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. 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	WILLIAMS_HUNTLEY_MELLODY_ESTELLA_MARIA_CH_844E_22_0353_I_1_FINAL_ORDER_2003368.pdf	2023-02-16	null	CH-844E	NP
3,525	https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_HUNTLEY_MELLODY_ESTELLA_MARIA_CH_3443_22_0349_I_1_FINAL_ORDER_2003375.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MELLODY ESTELLA MARI A WILLIAMS -HUNTLEY, Appellant, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES , Agency. DOCKET NUMBER CH-3443 -22-0349 -I-1 DATE: February 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mellody Estella Maria Williams -Huntley , Glendale Heights, Illinois, pro se. Gregory G. Watts , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial dec ision, which dismissed her appeal for lack of jurisdiction . On petition f or review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the appellant makes no argument, instead attaching documents which consist largely of filings that are part of the record .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 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.3 5 C.F.R. § 1201.113 (b). 2 The appellant has also filed appeals against the Federal Labor Relations Authority and the Office of Personnel Management. Those claims will be addressed respectively in MSPB Docket Nos. CH-3443 -22-0350 -I-1 and CH -844E -22-0353 -I-1. Furthermore, to the extent that the appellant seeks to challenge her removal from the Social Security Administration (SSA), her removal is the subject matter of MSPB Docket No. CH-0752 -19-0568 -B-1, and will be addressed there . Finally, to the extent that she seeks to raise allegations of noncompliance against SSA , as found by the Board in Huntley v. Social Security Administration , MSPB Docket No. CH -0752 -19-0568 -I-2, Final Order at 4 -5 (June 21, 2022), because there is no settlement agreement in the record, the Board lacks jurisdiction over these claims . 3 The administrative judge incorrectly informed the appellant that she need only make a nonfrivolous allegation of jurisdiction. Initial Appeal File ( IAF), Tab 3 at 2 . Per the Board’s regulations, an appellant must establish Board jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). However, this error did not prejudice the appell ant’s substantive rights. The appellant was provided ample opportunity to present evidence and argument on the issue of jurisdiction. IAF, Tabs 3 -5, 9. Nevertheless, she was unable to meet the less rigorous nonfrivolous allegation standard, and thus, sh e cannot meet the more stringent preponderant evidence standard. Accordingly, the administrative judge’s error did not prejudice the appellant ’s substantive rights and does not serve as a basis for reversal. See Panter v. Department of the Air Force , 3 NOTICE OF APPEAL RIG HTS4 You may obtain re view of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although 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 situat ion and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claim s and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below t o decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule , an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 22 M.S.P.R. 281 , 282 (1984 ) (explaining that a n adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 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 mo st 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 th e court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Fed eral Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any atto rney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is app ealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 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 allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	WILLIAMS_HUNTLEY_MELLODY_ESTELLA_MARIA_CH_3443_22_0349_I_1_FINAL_ORDER_2003375.pdf	2023-02-16	null	CH-3443	NP
3,526	https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_HUNTLEY_MELLODY_ESTELLA_MARIA_CH_3443_22_0350_I_1_FINAL_ORDER_2003378.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MELLODY ESTELLA MARI A WILLIAMS -HUNTLEY, Appellant, v. FEDERAL LABOR RELATI ONS AUTHORITY, Agency. DOCKET NUMBER CH-3443 -22-0350 -I-1 DATE: February 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mellody Estella Maria Williams -Huntley , Glendale Heights, Illinois, pro se. Rebecca J. Osborne , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction . On petition f or review, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant does not make any arguments but merely attaches document s to her petition for review, including copies of filings fr om the record and a document purporting to show the status of her outstanding unfair labor practice charges .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 av ailable when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b). 2 The appellant has also filed appeals against the American Federation of Government Employees and the Office of Personnel Management. Those claims will be addressed respectively in MSPB Docket Nos. CH-3443 -22-0349 -I-1 and CH -844E -22-0353 -I-1. Furthermore, to the extent that the appellant seeks to challenge her removal from the Social Security Administration (SSA), her remova l is the subject matter of MSPB Docket No. CH -0752 -19-0568 -B-1, and will be addressed there . Finally, to the extent that she seeks to raise allegations of noncompliance against SSA , as found by the Board in Huntley v. Social Security Administration , MSPB Docket No. CH-0752 -19-0568 -I-2, Final Order at 4 -5 (June 21, 2022), because there is no settlement agreement in the record, the Board lacks jurisdiction over these claims . 3 The administrative judge incorrectly informed the appellant that she need only make a nonfrivolous allegation of jurisdiction. Initial Appeal File ( IAF), Tab 3 at 2. Per the Board’s regulations, an appellant must establish Board jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). However, this error did not prejudice the appellant’s substantive rights. The appellant was provided ample opportunity to present evidence and argument on the issue of jurisdiction. IAF, Tabs 3 -4. Nevertheless, she was unable to meet the less rigorous nonfrivolous allegation standard, and thus, she 3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your cl aims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Me rit Systems Protection Board does not provide legal advice on which 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 y our case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circu it, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). cannot meet the more stringent preponderant evidence standard. Accordingly, the administrative judge’s error did not prejudice the appellant’s substantive rights and does not serve as a basis for reversal. See Panter v. Department of the Air Fo rce, 22 M.S.P.R. 281 , 282 (1984 ) (explaining that a n adjudicatory error that is not prejudicial to a party’s substantive rights provides n o basis for reversal of an initial decision). 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 opti on is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appea ls for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protect ion Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discri mination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of th is decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 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 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 Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This 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.5 The court of appeals must receive your petition for review within 60 day s of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petit ion to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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 i nto 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 app eals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WILLIAMS_HUNTLEY_MELLODY_ESTELLA_MARIA_CH_3443_22_0350_I_1_FINAL_ORDER_2003378.pdf	2023-02-16	null	CH-3443	NP
3,527	https://www.mspb.gov/decisions/nonprecedential/COMBS_CRYSTAL_DC_0432_18_0552_I_2_REMAND_ORDER_2003380.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CRYSTAL COMBS, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC-0432 -18-0552 -I-2 DATE: February 16, 2023 THIS ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant. John T. Koerner , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chair man Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal . For the reasons discussed below, we AFFIRM the reversal of the removal action. We REMAND the case to the regional office 1A nonprecedential order is one that the Board has det ermined does not add significantly to the body of MSPB case 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 decision s. In contrast, a precedential decision issued as an Opinion and Order 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 further adjudication of the appellant’s claim that the agency retaliated against her for protected activity under the Rehabilitation Act of 1973 . BACKGROUND ¶2 The appellant was formerly employed as a Management and Program Analyst, GS -0343 -14, with the a gency’s Office of the Chief Information Officer. Combs v. Department of Homeland Security , MSPB Docket No. DC -0432 -18- 0552 -I-1, Initial Appeal File (IAF), Tab 4 at 38. At some point in 2012, the appellant filed an equal employment opportunity (EEO) compl aint, alleging that the agency had failed to provide her with reasonable accommodation for her disabilities, which required her to telework full time. Combs v. Department of Homeland Security , MSPB Docket No. DC -0432 -18-0552 -I-2, Appeal File (I-2 AF), Tab 5 at 6 -7. On August 11, 2015, while the 2012 complaint was still pending, the appellant filed a second EEO complaint, alleging that the agency continued its failure to p rovide reasonable accommodation and was also discriminating against her based on her disability and in reprisal for her prior protected activity. Id. at 2 -3. ¶3 On August 21, 2015, the appellant’s supervisor issued the appellant a Notice of Unacceptable Performance and Establishment of a Performa nce Improvement Period (PIP). IAF, Tab 5 a t 40 -47. The notice advised the appellant that her performance was unacceptable in three critical elements (Core Competency #2: Customer Service; Core Competency #5: Technical Proficiency; and Performance Goal #3: Acquisition Planning) and explained what the appellant was required to accomplish in order to meet the “Achieved Expectations” level in each critical element before the end of the PIP. Id. The PIP was initially scheduled to last 60 days but was subsequently extended through October 30, 2015, for a total of 71 calendar days. IAF, Tab 4 at 285. ¶4 On December 3, 2015, the appellant’s supervisor determined that the appellant had not met the requirements imposed in the PIP, and he proposed her 3 removal under 5 U.S.C. chapter 43. Id. at 270 -78. The appellant was removed on February 9, 2016 .2 Id. at 224. Shortly thereafter, on February 25, 2016, the appellant amended her 2015 EEO complaint to include the proposal notice and removal as alleged discriminatory actions. I -2 AF, Tab 5 a t 8-9. ¶5 On May 24, 2017, the appellant filed a Board appeal contesting her removal. Combs v. Department of Homeland Security , MSPB Docket No. DC-0432 -16-0537 -I-1, Initial Decision (Dec. 28, 2017). On December 28, 2017, an administrative judge reversed t he removal and ordered the appellant’s reinstatement, finding that the agency had denied her due process by failing to consider her response to the proposal notice. Id. On February 1, 2018, the agency filed a timely petition for review of that decision.3 ¶6 Shortly thereafter, on February 14, 2018, the appellant’s supervisor issued a second proposal to remove the appellant pursuant to 5 U.S.C. chapter 43, again charging her with failure to demonstrate acceptable performance based on the August 21, 2015 PIP notice. IAF, Tab 5 at 5 -7. In the alternative, he proposed that the appellant be removed pursuant to 5 U.S.C. chapter 75 based on charges of unacceptable performance and conduct unbecoming a Federal employee. Id. at 9-17. The charge of unacceptable pe rformance was based on the same alleged 2 Meanwhile, on December 30, 2016, the Equal Employment Opportunity Commission (EEOC) issued a decision on the appellant’s 2012 complaint, finding that the agency “abruptly revoked [her] telework accommodation, inexplicably delayed restoring [her] telework for four months, failed to respond to [her] request for assistive technology, software, and training, and subsequently penalized [her] for its own failure to reasonably accommo date her.” See I-2 AF, Tab 5 at 7. The EEOC ordered the agency to provid e the appellant with reasonable accommodation; expunge all related written warnings, reprimands, and counseling; conduct a supplemental investigation to determine whether she was entitled to compensatory damages; provide training to the responsible managem ent officials regarding their responsibilities under the Rehabilitation Act; and take appropriate disciplinary action against the responsible management officials. See i d. 3 We issue d a separate order deny ing the agency’s petition for review in that cas e. Combs v. Department of Homeland Security , MSPB Docket No. DC -0432 -17-0536-I-1, Final Order ( Feb. 15, 2023 ). 4 performance deficiencies underlying the proposed chapter 43 action. Id. at 7-13. In support of the charge of conduct unbecoming, the agency alleged that when the appellant defaulted on her mortgage in 2009, she eng aged in a prolonged campaign of obstructive and frivolous litigation in order to delay a foreclosure sale on the property, resulting in rebuke from a bankruptcy court judge. Id. at 13-17. The agency asserted that the appellant engaged in a “pattern of ab use” of the bankruptcy court system for the purpose of delaying her creditors from enforcing their rights to the property and demonstrated that she was unwilling to satisfy her debts, raising concerns about her responsibility and trustworthiness in her pos ition. Id. 16-17. After providing the appellant an opportunity to respond, the agency removed the appellant effective April 27, 2018. IAF, Tab 4 at 38 -51. ¶7 The appellant then filed a second Board appeal challenging the agency’s April 27, 2018 removal dec ision. IAF, Tab 1. She asserted affirmative defenses of disability discrimination based on failure to accommodate and disparate treatment, and she also alleged retaliation for prior protected EEO activity. IAF, Tab 1 at 6, Tab 10 at 4 -5. She initially requested a hearing but subsequently withdrew her request. IAF, Tab 1 at 2, Tab 22 at 3. The appeal was dismissed without prejudice to refiling and later automatically refiled. IAF, Tab 24, Initial Decision; I -2 AF, Tabs 1 -2. ¶8 Shortly thereafter, the appellant’s representative submitted a copy of a March 26, 2019 decision by the Equal Employment Opportunity Commission (EEOC) resolving the appellant’s 2015 complaint.4 I-2 AF, Tab 5. In its decision, the EEOC determined that the agency “failed in its duty to reasonably accommodate [the appellant’s] disabilities by either not providing [her] with adequate equipment, software and training, or unreasonably delaying the 4 The decision was published under the name Patricia W. v. Department of Homeland Security , EEOC Appeal No. 0120172637, 2019 WL 1761759 (Mar. 26 , 2019 ). The EEOC has since denied the agency’s request for reconsideration. Patricia W. v. Department of Homeland Security , EEOC Petition No. 2019003714, 2019 WL 5309320 (Oct. 11, 2019 ). 5 provision of necessary technologies to support her accommodation of full -time telework which, in turn, negatively impacted [her] work performance.” Id. at 17. The EEOC further found that the August 21, 2015 PIP, as well as the previous issuance of a March 2015 performance counseling memorandum (PCM), “directly result ed from the [a]gency’s failure to provide [the appellant] with adequate technologies required to effectively telework from home as a reasonable accommodation to her disabilities.” Id. Among other remedies, the EEOC directed the agency to expunge the PIP and PCM. Id. at 20. The EEOC declined to address the appellant’s claims concerning her February 25, 2016 removal, as those issues were then before the Board. Id. at 10. ¶9 In light of the EEOC decision, the administrative judge ordered the parties to provi de additional evidence and argument regarding her performance and her discrimination claims. I -2 AF, Tab 4 at 1. After the record closed, the administrative judge issued an initial decision based on the written record, reversing the agency removal action . I-2 AF, Tab 12, Initial Decision (ID). ¶10 In his decision, the administrative judge considered the performance -based charge under both chapter 43 and chapter 75 standards. Regarding the chapter 43 basis for the action, the administrative judge found that , because the PIP had been expunged, the agency could not show that the appellant’s performance was unacceptable in one or more critical elements of her position or demonstrate that it gave her a reasonable opportunity to improve her performance to an acce ptable level. ID at 6. Regarding the charge of unacceptable performance under chapter 75, the administrative judge again found that the agency relied on the expunged PIP to provide the appellant with the specific objectives she needed to complete in orde r to demonstrate acceptable performance. ID at 7. Because the PIP was expunged, he concluded that the agency could not demonstrate that the performance standards against which it assessed the appellant’s work were reasonable and that they provided an acc urate measurement of the appellant’s performance. Id. 6 ¶11 As to the remaining charge, the administrative judge found that the agency failed to establish that the appellant’s conduct during the bankruptcy proceeding constituted conduct unbecoming a Federal e mployee. ID at 10 -11. In reaching that conclusion, the administrative judge found that (1) involvement in a bankruptcy proceeding is not illegal or conduct unbecoming a Federal employee; (2) even if the appellant’s “zealous advocacy of her financial inte rests” did draw rebuke from the bankruptcy court, she was acting on the advice of her attorney, who had significant expertise in bankruptcy and foreclosure law and who certified in an affidavit that the appellant’s defensive legal strategies were entirely within the bounds of the law; and (3) many of the actions mentioned by the bankruptcy court in its rebuke of the appellant occurred during a period of time when the appellant was not a Federal employee, and therefore her conduct could not constitute “condu ct unbecoming a Federal employee.” ID at 10 -11. The administrative judge further found the agency could not establish a nexus between the appellant’s conduct and the efficiency of the service. ID at 11 -12. ¶12 Turning to the appellant’s affirmative defense s, the administrative judge determined, based on the findings in the March 26, 2019 EEOC decision, that the agency violated the Rehabilitation Act by failing to adequately accommodate the appellant’s disabilities. ID at 12 -16. The administrative judge fu rther found that the appellant’s disability was a motivating factor in the decision to remove her. ID at 17 -18. Finally, the administrative judge found that the appellant established her r etaliation claim. ID at 18 -19. In reaching that conclusion, the administrative judge found that the imposition of the PIP was retaliatory and that because the charges of unacceptable performance were predicated on the PIP, the appellant’s protected activity was a motivating factor in the agency’s decision to remove her . ID at 19. ¶13 The agency has filed a petition for review of the initial decision. Combs v. Department of Homeland Security , MSPB Docket No. DC -0432 -18-0552 -I-2, Petition for Review (PFR) File, Tab 1. On review, the agency concedes that it 7 denied the appe llant reasonable accommodation, as the EEOC determined, and states that it no longer relies on chapter 43 as a basis for its action. Id. at 1 -2, 13. However, the agency argues that the administrative judge erred in not sustaining the chapter 75 charges o f unacceptable performance and conduct unbecoming. Id. at 6-12. The agency further contends that the administrative judge erred in finding that its action was retaliatory. Id. at 12 -13. The appellant has filed a response in opposition to the petition for review, as well as a no tice declining interim relief.5 PFR File, Tabs 3 -4. The agency has filed a reply to the appellant’s response .6 PFR File, Tab 5. 5 The appellant’s request to waive interim relief is granted . See Ellshoff v. Department of the Interior , 69 M.S.P.R. 585 , 587 -88 (1996) (finding that an appellant who has an alternative source of income may waive interim relief, because the purpose of the interim relief is to prot ect the appellant from hardship ). 6 The appellant has since filed a motion for leave to file a surreply, and the agency has filed a motion opposing the appellant’s request for leave to file a surreply. PFR File, Tabs 7, 9. In her request for leave to file a surreply, the appellant argues that the agency raised new issues in its reply to the response to the petition for review regarding the “other ways the agency can allegedly prove its charge.” PFR File, Tab 7. Because we have fully addressed the agency’s argument here and still find that the agency failed to prove its charges, we deny both motions. 8 DISCUSSION OF ARGUME NTS ON REVIEW The agency failed to prove the charge of unacceptable performanc e.7 ¶14 In a performance -based action under chapter 75, specific standards of performance need not be established and identified in advance. Shorey v. Department of the Army , 77 M.S.P.R. 239 , 244 (1998). Rather, an agency must simply prove by preponderant evidence that its measurement of the appellant’s performance was both accurate and reasonable. Id. Nevertheless, the agency may not “circumvent [c]hapter 43 by charging that an employee should have performed better than the standards communicated to him in accordance with [c]hapter 43.” Lovshin v. Department of the Navy , 767 F.2d 826 , 842 (Fed. Cir. 1985 ). ¶15 The agency argues that, even though the PIP was expunged from the appellant’s record, the relevant objectives were communicated to her in other ways, either through her Perf ormance Work Plan (PWP) or through email communications from supervisors. PFR File, Tab 1 at 6 -8. However, the removal proposal explicitly identified the PIP as the source of the objectives the 7 It is questionable whether the administrative judge should have adjudicated th e performance -based charge under both chapter 43 and chapter 75 standards . It is well established that an agency may take a performance -based action under either chapter 43 or chapter 75, Lovshin v. Department of the Navy , 767 F.2d 826 , 843 (Fed. Cir. 1985), and may convert the action from chapter 43 to chapter 75 if a hearing has not yet occurred , Ortiz v. U.S. Marine Corps , 37 M.S.P.R. 359 , 363 (1988). It is also permissible for an agency to bring a hybrid action, charging an employee with unacceptable performance under chapter 43 procedures while bringing an addit ional or alternative charge, such as conduct unbecoming, under chapter 75 procedure s. Lovshin , 767 F.2d at 843. However, we are unaware of any case in which the Board has considered allegations of unacceptable performance under both standards. Moreover, the Board has suggested in dicta that chapter 43 and chapter 75 procedures are, by statute, mut ually exclusive w ith respect to the same charge. See Aguzie v. Office of Personnel Management , 112 M.S.P.R. 276 , ¶ 4 n.2 (2009) ( citing 5 U.S.C. § 7512 (D)), reconsidered on other grounds , 116 M.S.P.R. 64 (2011). However, if the administrative judge did err on this point, the error does not affect the outcome of the case because the agency has indicated that it no longer relies on chapt er 43 as a basis for its action , and the administrative judge corre ctly found that the agency failed to prove a charge of unacceptable performance under chapter 75. 9 appellant allegedly failed to complete. See IAF, Tab 5 at 7 (“In the PIP notice, you were given specific objectives that you needed to complete in order to demonstrate acceptable performance . . . [and] you failed to complete these objectives[.]”). Even if the agency might have properly charged the appellant with unacceptable performance based on her alleged failure to meet objectives set forth in the PWP or email communications, the Board is required to review the agency’s decision solely on th e grounds invoked by the agency and may not substitute what it conside rs to be a more adequate or proper basis . Gottlieb v. Veterans Administration , 39 M.S.P.R. 606 , 609 (1989); see, e.g. , Fargnoli v. Department of Commerce , 123 M.S.P.R. 33 0, ¶¶ 14 -15 (2016) (finding that the agency failed to prove a specification of improper st orage of an firearm in an unoccupied Government -owned vehicle when the appellant’s firearm was unauthorized , but the specification relied explicitly on an agency policy applicable to authorized firearms only). Accordingly, we agree with the administrative judge that, because the PIP has been expunged, the agency cannot establish that the objectives set forth “[i]n the PIP notice” provided an accurate and reasonable measurement of the appellant’s performance. ID at 7; see IAF, Tab 5 at 7. The agency faile d to prove the charge of conduct unbecoming a Federal employee. ¶16 The agency also argues on review that the administrative judge erred in finding that the charge of conduct unbecoming a Federal employee could not be sustained. PFR File, Tab 1 at 8 -12. The agency states that the language from the conduct unbecoming charge alleging that the appellant engaged in a “pattern of abuse” of the bankruptcy court system for the purpose of “delaying [her] creditor(s) from enforcing their rights to her rental property” was drawn directly from a bankruptcy court order and that the determination by the bankruptcy court must be given collateral estoppel effect. Id. at 8-9. 10 ¶17 We agree with the appellant that the requirements of collateral estoppel are not satisfied. PFR F ile, Tab 4 at 10. Under the doctrine of collateral estoppel, once an adjudicatory body has decided a factual or legal issue necessary to its judgment, that decision may preclude relitigation of the issue in a case concerning a different cause of action in volving a party to the initial case. Allen v. McCurry , 449 U.S. 90 , 94 (1980). Collateral estoppel is appropriate when th e following conditions are met: (1) an issue is identical to that involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination on the issue in the prior action was necessary to the resulting judgment; and (4) the party against wh om issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action, either as a party or as one whose interests were otherwise fully represented in the that action. Hau v. Department of Homeland Security , 123 M.S.P.R. 620 , ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). ¶18 Here, the issues before the b ankruptcy court and the Board a re not identical. The issue before the Board is whether the agency has met its burden of proving that the appellant’s conduct during the course of civil bankruptcy proceedings constituted conduct unbecoming of a Federal employee. By contrast, the issues before the bankruptcy court judge were whether the appellant’s motion for a stay of enforcement of the bank ruptcy court’s order should be granted, and whether an equitable servitude against the appellant’s rental property should be granted to the lender. See IAF, Tab 5 at 544 -49, 688 -89. Hence, the doctrine of collateral estoppel does not apply. ¶19 The agency also disputes the administrative judge’s finding that, because the appellant was not a Federal employee during much of the time that the allegedly unbecoming conduct occurred, the agency cannot establish a nexus between the purported misconduct and the eff iciency of the service. PFR File, Tab 1 at 10; see ID at 11 -12. In support of its argument, the agency cites a nonprecedential Board decision, Dale v. Department of the Treasury , MSPB 11 Docket No. CH -0752 -10-0300 -I-8, Final Order (Sept. 18, 2014), and a precedential decision, Adams v. Department of the Army , 105 M.S.P.R. 50 , ¶ 18, aff’d , 273 F. App’x 947 (Fed. Cir. 2008). ¶20 We agree with the appellant that both cases are distinguishable or inapposite. See PFR File, Tab 4 at 8 -10. As an initial matter, Dale is a nonprecedential decision and therefore does not constitute binding precedent on the Board. See 5 C.F.R. § 1201.117 (c)(2). In any event, the appellant in Dale was convicted of multiple counts of criminal bankruptcy fraud and for making false statements in relation to bankruptcy proceedings prior t o his Federal service. In contrast, the appellant here was involved only in a civil bankruptcy proceeding and was not charged with fraud or with making false statements. Furthermore, as the administrative judge found, the appellant’s actions during the c ourse of the bankrupt cy proceedings were not illegal and were consistent with the advice of competent legal counsel. See IAF, Tab 4 at 43, 53 -61; ID at 10-12. ¶21 Adams is also inapposite. The appellant in Adams was removed for failure to maintain a condit ion of employment after the agency suspended his access to the agency’s computer system, based on derogatory information about his debts. Adams , 105 M.S.P.R. 50 , ¶¶ 3, 19. Unlike the alleged misconduct in this case, failure to meet a condition of employment bears an obvious nexus to the efficiency of the service. See Flores v. Department of Defense , 121 M.S.P.R. 287, ¶ 12 (2014). The agency attempts to elide the distinction by arguing that the appellant’s fiduciary responsibilities were as great, if not greater, than those of the appellant in Adams . PFR File, Tab 1 at 11 -12. Be that as it may, it remains true that the charge at i ssue in Adams does not resemble the charge at issue here. We remand the case for further adjudication of the appellant’s retaliation claim. ¶22 On review, the agency argues that the administrative judge erred in finding that the appellant proved her claim of retaliation for protected activity under the Rehabilitation Act. PFR File, Tab 1 at 12 -13; Tab 5 at 7-8; see ID at 12-19. The Rehabilitation Act incorporates by reference the standards of the Americans with 12 Disabilities Act of 1990 (ADA), as amended by the Americans with Disabilities Amendments Act of 2008 (ADAAA), and the Board applies those standards to determine whether there has been a Rehabilitation Act violation. See 29 U.S.C. § 791(f); Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 13 n.3 (2014). As relevant here, the ADA8 provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. ” 42 U.S.C. § 12203 (a). ¶23 On review, the agency argues that the decision to place the appellant on the PIP could not have been retaliation for the appellant’s EEO complaint b ecause the supervisor who placed the appellant on the PIP did so before he became aware of the fact that the appellant had filed an EEO complaint against him. PFR File, Tab 1 at 12. However, the appellant asserts that the agency retaliated against her not only for filing EEO complaints but also for requesting reasonable accommodatio n. IAF, Tab 10 at 5. A request of reasonable accommodation is also protected activity under 42 U.S.C. § 12203 (a). See Southerland v. Department of Defense , 119 M.S.P.R. 566 , ¶ 21 (2013) (citing numerous court and EEOC decisions), overruled on other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31. Thus, even if the su pervisor was unaware of the appellant’s EEO complaints, it remains possible that the appellant’s placement on a PIP and subsequent removal were retaliatory. ¶24 In addressing the appellant’s retaliation claim, the administrative judge applied the standard the Board set forth in Southerland . Under that standard, the appellant must first prove that her protected activity was a motivating factor in the agency’s removal action. Southerland , 110 M.S.P.R. 566, ¶ 23. The Board further held in Southerland that if t he appellant meets her initial burden, the 8 The ADAAA makes no reference to retaliation and leaves the ADA retaliation provisions undisturbed. 13 burden shifts to the agency to prove by clear and convincing evidence that it still would have taken the action in the absence of the retaliatory motive. Id., ¶¶ 23-25. ¶25 However, during the pendency of this peti tion for review, the Board issued its decision in Pridge n, 2022 MSPB 31, which overrule d Southerland and held that, in addressing retaliation claims under the Rehabilitation Act, the Board will instead apply a more stringent “but for” standard of causation. Pridgen , 2022 MSPB 31, ¶¶ 46-47. In other words, to show a violation under the current standard, the appellant must show not merely that her protected activity was a motivating factor in the contested action but that the agency would not have taken the action in the absence of her protected activity. Under this standard, unlike the framework for retaliation claims under 42 U.S.C. § 2000e -16, the burden of proof does not shift to the agency. Id., ¶ 47. ¶26 Hence, it is necessary to reconsider the appellant’s retaliation claim in accordance with Pridgen , applying a more stringent “but for” causation standard. Because neither the administrative judge nor the parties had the benefit of Pridgen , the parties did not have an opportunity to fully develop the record on this issue. Moreover, we cannot determine based on the existing record whether the appellant proved that retaliatory animus was the “but for” cause of the agency’s decisions to place her on the PIP and subsequently remove her. In particular, we note that the March 26, 2019 EEOC decision is not dispositive of the issue. While the EEOC found that the ap pellant’s placement on the PIP resulted from an unlawful denial of reasonable accommodation, the EEOC also foun d—based on the record before it —that the appellant failed to provide adequate evidence that discriminatory or retaliatory animus played a role in her supervisor’s monitoring of her work or assignment of tasks. I -2 AF, Tab 5 at 20. The EEOC did not consider the question of whether the imposition of the PIP and subsequent removal were retaliatory. 14 ¶27 Accordingly, we remand the appeal f or further dev elopment of the record and a new finding on the appellant’s claim of retaliation for protected activity under the Rehabilitation Act . Because the agency failed to prove its charges, and the action must therefore be reversed regardless of the outcome on re mand, we order the agency to cancel the removal action and provide the appellant appropriate back pay. See Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 14 (2016). ORDER ¶28 For the reasons discussed above, we REMAND this case to the Washington Regional Office for office for further adjudication of the appellant’s claim of retaliation for protected activity under the Rehabilitation Act. ¶29 Pending the remand proceedings, we ORDER the agency to cancel the removal and to retroactively restore the appellant effective April 28, 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. ¶30 We also ORDER the agenc y to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, in terest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶31 We further ORDER the agency to tell the appellant promptly in writing when it believes it ha s fully carried out the Board’s Order and of the actions it 15 has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶32 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appel lant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any c ommunications with the agency. 5 C.F.R. § 1201.182 (a). ¶33 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Def ense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentati on necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job underta ken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave tha t exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Seve rance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if a pplicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Resto ration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	COMBS_CRYSTAL_DC_0432_18_0552_I_2_REMAND_ORDER_2003380.pdf	2023-02-16	null	DC-0432	NP
3,528	https://www.mspb.gov/decisions/nonprecedential/STEVENSON_MICHAEL_E_DA_0714_19_0524_I_1_FINAL_ORDER_2003496.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL E. STEVENSON , JR., Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0714 -19-0524 -I-1 DATE: February 16, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael E. Stevenson, Jr. , Piedmont, Oklahoma, pro se. Chau Phan , Esquire, Denver, Colorado, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal under the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L. No. 115 -41, 131 Stat. 862 (VA Accountability Act) (c odified in relevant part, as amended, at 38 U.S.C. 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 § 714). For the reasons set forth below, we GRANT the petition for review and REVERSE the initial decision. The appellant’s removal is REVERSED. BACKGROUND ¶2 The appellant was a GS -08 Supervisory Police Officer (Lieutenant) for the Police Service at the agency’s Oklahoma City Veterans Administration Medical Center . Initial Appeal File (IAF), Tab 4 at 12. On July 18, 2018, the agency proposed the a ppellant’s removal under 38 U.S.C. § 714 based on an unlabeled narrative charge describing various acts of alleged misconduct, including harsh and unfair treatment of subordinates, misuse of securi ty cameras, and a heated verbal altercation with another Supervisory Police Officer. Id. at 55 -57. After the appellant responded, the agency issued a decision removing him effective September 19, 2019. Id. at 12 -15, 21 -54. ¶3 The appellant filed a Board ap peal, contesting the charges and the penalt y and raising affirmative defenses of retaliation for equal employment opportunity (EEO) and whistleblowing activity. IAF, Tab 1 at 3, 5, Tab 10 at 3. He did not request a hearing. IAF, Tab 1 at 2. After the c lose of the record, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 17, Initial Decision (ID). He sustained the charge, finding “that the agency established the appellant’s conduct created a work environmen t where he misused legitimate agency surveillance equipment and objectively intimidated and caused fear among his subordinate employees.” ID at 6 -13. He also denied the appellant’s affirmative defenses. Regarding the appellant’s whistleblower defense, t he administrative judge found that the appellant proved that he engaged in protected activity that was a contributing factor in his removal but that the agency proved by clear and convincing evidence that it would have removed him even in the absence of th at activity. ID at 13 -18. Regarding the appellant’s defense of retaliation for EEO activity, the administrative judge found that the appellant failed to show that his EEO activity was a motivating factor in his 3 removal. ID at 18 -21. Finally, the admini strative judge acknowledged that the appellant disputed the appropriateness of the penalty, but he declined to reach the issue on the basis that 38 U.S.C. § 714 prohibits mitigation of the agency’s chosen penalty. ID at 21. ¶4 The appellant has filed a petition for review, arguing that some of the evidence upon which the administrative judge relied was not credible. Petition for Review (PFR) File, Tab 1. He has submitted, for the first time, various recordings and transcripts of conversations that he had with several agency employees. PFR File, Tabs 3, 6. The agency has filed a response. PFR File, Tab 7. ANALYSIS ¶5 In an appeal of an adverse action taken under 38 U.S.C. § 714 (a), the agency bears the burden of proving its charges by substantial evidence. 38 U.S.C. § 714 (d)(2)(a). If the agency meets this burden , the Board may not mitigate the agency’s chosen penalty, but it is nevertheless required to review the penalty as part of the agency’s overall decision.2 38 U.S.C. § 714 (d)(2)(B), (3)(C); Sayers v. Department of Veterans Affairs , 954 F.3d 1370 , 1375 -79 (Fed. Cir. 2020). ¶6 The agency removed the appellant based on a single, unlabeled narrative charge: As a Supervisory Police Officer, you are tasked with leading a team and directly overseeing and monitoring the activities of police personnel assigned to you. In this position, you have created a culture of fear and intimidation. You have threatened employee s with disciplinary action, including termination, over minor offenses. You target certain employees for harsher treatment, to include excessive monitoring of employees on surveillance cameras. At 2 The appellant does not contest the administrative judge’s findings on his affirmative defense s of whistleblower retaliation and reprisal for EEO activity, and we find no reason to disturb them. See 5 C.F.R. § 1201.115 (“The Board normally will consider only issued raised in a t imely filed petition or cross petition for review.”). 4 times you have even used the surveillance cameras to moni tor women at the hospital, making inappropriate comments about their bodies. The cumulative effect of your conduct has had a detrimental impact on the work environment. Your unprofessional behavior has also spread into your interactions with peers, as de monstrated by your interaction with [another Supervisory Police Officer] on the first floor public hallway of the VA Health Care System. During this interaction on or about February 7, 2018, you spoke in an aggressive manner, used strong (at times profane ) language, spoke at a raised volume, and displayed threatening behaviors or gestures. IAF, Tab 4 at 55. It is well settled that an agency is not required to affix a label to a charge but may simply describe actions that constitute misbehavior in narrativ e form in its charge letter. Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 202 (1997). Furthermore, an agency is required to prove o nly the essence of its charge and need not prove each factual specification supporting the charge. Hicks v. Department of the Treasury , 62 M.S .P.R. 71 , 74 (1994), aff’d , 48 F.3d 1235 (Fed. Cir. 1995) (Table). In this case, the administrative judge found, and neither party disputes, that the essence of the agency’s charge was that “the appellant, as a supervisor, engaged in unprofessional, intim idating, and aggressive conduct that was detrimental to the agency’s work environment.” ID at 7. ¶7 The administrative judge found the agency met its burden to prove the charge. First, he considered the matter of the altercation between the appellant and th e other Supervisory Police Officer. ID at 7 -8. The two men differed in their accounts of the altercation, but after considering their statements and the deciding official’s description of the audio recording that the appellant made of the encounter, he c oncluded that the appellant’s actions were inappropriate. ID at 7-8; IAF, Tab 4 at 126 -38, Tab 15 at 25. Second, the administrative judge considered the remainder of the charge, which concerned more generalized allegations of misconduct, including bullyi ng subordinates and the misuse of surveillance cameras . After reviewing the investigatory interview statements of several witnesses, the administrative judge concluded that the agency showed by 5 substantial evidence that the appellant committed the miscond uct as alleged. ID at 8-13; IAF, Tab 4 at 58 -108. ¶8 On petition for review, the appellant disputes the administrative judge’s findings of fact and credibility determinations, and he seeks to introduce several pieces of evidence that he claims were previousl y unavailable. PFR File, T ab 1. We do not reach these arguments because we find that developments in the case law after the issuance of the initial decision require that the removal be reversed. Specifically, a fter the initial decision in this appeal was issued, the Board and the U.S. Court of Appeals for the Federal Circuit issued precedential opinions addressing the application of the VA Accountability Act to events that occurred before the date of its enactme nt. ¶9 In Sayers , 954 F.3d at 1380 -82, the court found that 38 U.S.C. § 714 has impermissible retroactive effect, and Congress did not authorize its retroactive application. Therefore, the agency m ay not use the VA Accountability Act to discipline an employee for matters that occurred before its effective date, June 23, 2017. Sayers , 954 F.3d at 13 74, 1380 -82. Subsequently, the court issued an opinion in Brenner v. Department of Veterans Affairs , 990 F.3d 1313 (Fed. Cir. 2021), addressing the section 714 removal of an employee for performance issues both predating and postdating June 23, 2017. The court in Brenner vacated the petitioner’s removal and remanded the appeal to the Board to determine whether the agency’s removal action was “supported by substantial evidence on the evidence of record that postdates the Act.” Id. at 1330 . ¶10 Finally, in Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶¶ 4, 29, the Board addressed the section 714 removal of an employee based on alleged neglect of duty both predating and postdating the effective date of the VA Accountability Act. The Board considered whether it would be possible to sustain the agency’s action based solely on any alleged post -June 23, 2017 neglect of duty , but it concluded that the action must be reversed because the underlying alleged instances of misconduct by the appellant’s subordinates “are 6 so factually interrelated that they cannot be fairly separated.” Id., ¶¶ 29-33 (quoting Boss v. Department of Homeland Security , 908 F.3d 1278 , 1279, 1282 -83 (Fed. Cir. 2018)). ¶11 In this case, as in Brenner and Wilson , the charge encompasses events that occurred both before and after the effective date of the VA Accountability Act. We have considered whether the charge might be sustained based solely on appellant’s conduct after June 23, 2017. See Brenner , 990 F.3d at 1330 . However, after a careful re view of the record, we have determined that this case is indistinguishable from Wilson . As in Wilson , 2022 MSPB 7 , ¶ 33, the notice of proposed removal in this case does not distinguish between events that occurred before and after the effective date of the Act , and the allegations as a whole are rather vague , IAF, Tab 4 at 55. Apart from the February 7, 2018 altercation, the proposal d oes not contain any specific dates or describe the alleged incidents . Instead, the agency appears to have relied on numerous investigative interview statements that it attached to the proposal in order to give the appellant specific notice of th e charges against him .3 Id. at 65 -133. A review of these statements shows that they encompass allegations of misconduct from 2009 all the way through the beginning of 2018. Id. In fact, excluding interview statements related solely to the February 7, 2 018 altercation, only four of the twelve interview statements appear to be largely concerned with events occurring after the enactment of the VA Accountability Act . IAF, Tab 4 at 78-83, 89 -92, 99 -104. Of these four statements, only two of them could pote ntially lend significant support to the charge, id. at 78 -80, 89 92, the other two being generall y favorable to the appellant, id. at 81 -83, 99 104. Thus, the large majority of th e agency’s allegations either concern events that predate June 23, 2017, or there is no 3 The Board has found that this approach may be sufficient to satisfy due process requirements . Alvarado v. Department of the Air Force , 97 M.S.P.R. 389 , ¶ 15 (2004). We make no finding here as to whether the notice of the charges was sufficient to permit the appellant to respond because we reverse the charge on dif ferent grounds, as discussed below. 7 reliable way to determine when the matters described allegedly occurred. See Wilson , 2022 MSPB 7 , ¶ 31 (no ting that only 1 of the 8 months for which the agency charged the appellant with neglect of duty postdated the VA Accountability Act). ¶12 Reading the charge as a whole, we also find that the allegations of misconduct are so interrelated that they cannot be fa irly separated. See id . The appellant was charged with “ creat [ing] a culture of fear and intimidation ” through unprofessional, intimidating , and aggressive conduct. IAF, T ab 1 at 55; ID at 7. To our understanding, a workplace culture is created by cumu lative actions over a period of time . This understanding is consistent with the broad language in which the agency couched it s charge, as well as the expansive scope of information that the agency included in its evidence file. IAF, Tab 4 at 55, 65-133. For these reasons, we find that considering the appellant’s post -June 23, 2017 conduct in isolation would be to take it out of the context in which it was meant to be understood in the charge. ¶13 Finally, we observe that the agency’s choice of penalty , which is part of the overall decision to be reviewed, Sayers , 954 F.3d at 1375 -79, was heavily influenced by allegations of misconduct that predate the VA Accountability Act. Specifically, the deciding official considered that the appellant’s misconduct had “been goi ng on for a long period of time. ” IAF, Tab 15 at 25. He also considered to be “extremely serious ” certain misuse of surveillance cameras that we find no evidence of whatsoever during the post -June 23, 2017 time period. Therefore, not only is the agency ’s charge tainted by its impermissible consideration of pre -VA Accountability Act misconduct, but its penalty determination is as well. ¶14 For these reasons, we find that the appellant’s removal must be reversed. See Wilson , 2022 MSPB 7 , ¶ 33. To the extent the agency wishes to take a new adverse action based on events occurring after June 23, 2017, it may do so under the procedures of 38 U.S.C. § 714 or 5 U.S.C. chapter 75 . To the extent the 8 agency wishes to rely on evidence of misconduct that predates the Act, it must proceed in accordance with 5 U.S.C. c hapter 75 . See Brenner , 990 F.3d at 1330 . ORDER ¶15 We ORDER the agency to cancel the removal action and restore the appellant effective September 19, 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. ¶16 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service regulations, as appropriate, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest 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. ¶17 We further ORDER the agency to tell the appellant p romptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶18 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 ini tial 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 shou ld include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). 9 ¶19 For agencies whose payroll is administered by either the National Finance Center of the D epartment of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), secti ons 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 a ttorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS4 You may obtain review of this fina l decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the right s described below do not represent a 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully f ollow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guid e for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, y ou may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 11 Board neither endorses the services provided by any attorney nor warran ts that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action 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 represe ntative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discriminatio n based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a repres entative in this case, and your representative receives this decision before you do, then you must file 12 with the EEOC no later than 30 calendar days after your representative 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.5 The court of appeals must receive your petition for 5 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on 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 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified t o do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later r eversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agree d on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings document ation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of t he period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Pe rsonnel Operations at 504 -255-4630.	STEVENSON_MICHAEL_E_DA_0714_19_0524_I_1_FINAL_ORDER_2003496.pdf	2023-02-16	null	DA-0714	NP
3,529	https://www.mspb.gov/decisions/nonprecedential/FREEMAN_PEIERRE_L_DA_0353_22_0125_I_1_FINAL_ORDER_2002815.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PEIERRE L. FREEMAN, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DA-0353 -22-0125 -I-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peierre L. Freeman , De Soto, Texas, pro se. Theresa M. Gegen , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his restoration appeal for lack of jurisdiction . On petition for review, the appellant does not make any argument but instead submits additional evidence . Petition for Review (PFR) File, Tab 1. Generally, we grant petitions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 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 r egulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, a nd the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, sectio n 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting t he petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the basis for concluding that the appellant failed to nonfrivolously allege Board jurisdiction , we AFFIRM the initial decision. ¶2 In the initial decision, the administrative judge considered the four substantive jurisdictional elements as set forth in Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404 , ¶ 12 (2016) , in arriving at her conclusion that the appellant failed to nonfrivolously allege Board jurisdiction over his appeal. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 2 -7. She found tha t the appellant nonfrivolously alleged that he was absent from his position due to a compensable injury, that he had partially recovered, and that the agency denied his request for restoration . ID at 5. We agree with those conclusions. She also consider ed whether the appellant nonfrivolously alleged that the denial of restoration rights —which she identified as the discontinuation of the appellant’s July 2018 modified duty assignment —was arbitrary and capricious. ID at 5. She cited case law concerning w hen, under the agency’s internal rules, it may discontinue a modified assignment consisting of tasks within an employee’s medical restrictions but found that the requirements of the appellant’s July 2018 modified job assignment were not within his 2021 upd ated medical restrictions. ID at 6. 3 As a result, she concluded that the appellant failed to nonfrivolously allege that the agency acted arbitrarily and capriciously in discontinuing his July 2018 modified assignment and thus that he failed to establish B oard jurisdiction over his appeal . ID at 7. ¶3 After the issuance of the initial decision, the Board issued a decision in Cronin v. U.S. Postal Service , 2022 MSPB 13 , which clarified when a denial of restoration may be arbitrary and capricious. In Cronin , the Board held that, although agencies may undertake restoration efforts beyond the minimum effort required by OPM under 5 C.F.R. § 353.301 (d), an agency ’s failure to comply with 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 capricious for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304 (c). Cronin , 2022 MSPB 13 , ¶ 20. Rather, the issue before the Board is limited to whether the agency failed to comply with the mi nimum requirement of 5 C.F.R. § 353.301 (d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee and to consider him for any such vacancies. Id. (citing Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345 , ¶ 12 (2010)). ¶4 In light of Cronin , we have re examined the appellant’s pleadings below and on review and find that they do not contain any allegation that the agency’s action was arbitrary and capricious because it failed to comply with the minimum requirements of 5 C.F.R. § 353.301 (d). IAF, Tabs 1, 12, 13; PFR File, Tab 1. On that basis, we find that the appellant failed to nonfrivolously allege Board jurisdiction over his claims, and we modify the initial decision to reflect as mu ch. ¶5 On review, the appellant submits new evidence including emails about his new modified job offer, a letter from his new physician, mail receipts, claim for compensation forms, signed statements regarding previous incidents with his supervisors, an old s ettlement agreement, and other various emails and papers. PFR File, Tab 1. He provides no explanation as to why he did not provide this 4 evidence , which predates the initial decision, to the administrative judge. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (finding that the Board generally will not consider evidence submitted for the first time with the petition for review ab sent a showing that it was unavailable before the record was closed despite the party's due diligence); 5 C.F.R. § 1201.115 (d). In any event, none of this evidence is material to the ou tcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). NOTICE OF APPEAL RIG HTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final dec ision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within th eir jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in th e notice, the Board cannot advise which option is most appropriate in any matter. 5 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropria te one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 6 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative rece ives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national or igin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file 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: 7 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 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.3 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). 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. 8 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 before the 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	FREEMAN_PEIERRE_L_DA_0353_22_0125_I_1_FINAL_ORDER_2002815.pdf	2023-02-15	null	DA-0353	NP
3,530	https://www.mspb.gov/decisions/nonprecedential/WASHINGTON_LIONEL_DA_0752_15_0413_I_1_FINAL_ORDER_2002850.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LIONEL WASHINGTON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0752 -15-0413 -I-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brenda Richardson , San Antonio, Texas, for the appellant. Thomas Herpin , Esquire , and Cecilia G. Isenberg , Houston, Texas, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his 20 -day suspension for failure to follow instructions and delay in carrying out an assigned duty. Generally, we grant petitions such as this one only 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 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. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant is a Medical Record s Technician , GS -0675 -05, at the agency’s South Texas Veterans Health Care System, in San Antonio, Texas. Initial Appeal File (IAF), Tab 8 at 108 , 110 . The agency suspended him for 20 days for Failure to Follow Instructions (2 specifications) and Delay in Carrying Out an Assigned Duty (1 specification) . Id. at 108, 110-13. The appellant filed an equal employment opportunity (EEO) complaint, alleging that the agency discriminated against him and subjected him to a hostile work environment based on race, a ge, and reprisal for prior EEO activity. IAF, Tab 2 at 7-17. On Ma y 7, 2015, the agency issued a final agency d ecision finding no discrimination, retaliation, or harassment. Id. This appeal followed. IAF, Tab 2. ¶3 The appellant asserted on appeal that the suspension was discriminatory based on his race and age, and was imposed in retaliation for prior Board appeals and EEO complaints. Id. at 2. The administrative judge found that the agency proved both charges by preponderant evidence. IAF, Tab 33, Initial Decision 3 (ID) at 2-10. The administrative judge further found that the appellant failed to show by preponderant evidence that the agency’s action resulted from discrimination or retaliation . ID at 10 -21. The administrative judge also found that the penalty promoted the efficiency of the service and was reasonable , and she affirmed the agency ’s action. ID at 21 -25. The appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency did not respond. ANALYSIS ¶4 On revi ew, the appellant reargues the claim s he raised before the administrative judge , taking issue with the findings of fact regarding whether he committed the charged conduct and whether the agency’s reasons for taking the action against him were pretextual. His arguments are unpersuasive. ¶5 In particular, the appellant challenges the administrative judge’s finding s on the first specification of the first charge , Failure to Follow Instructions . Id. at 3-6. This specification involves the appellant’s refusal to schedule a fact -finding meeting that he had been instructed to attend. IAF, Tab 8 at 115. The appellant ’s supervisor offered him a choice of days and times for scheduling such a meeting, and he did not respond to the supervisor’s email request. Id. The fact -finding meeting pertained to an i nsufficiently documented request for leave under the Family and Medical Leave Act (FMLA) . Id. at 126 -27. The appellant maintains that he took the leave to care for family members , that it had been approved, and that the administrative judge erred by not recognizing those facts . PFR File, Tab 1 at 3 -4. ¶6 The administrative judge, however, properly sustained the specification. An employee must comply with an agency order, even when he may have substantial reason to question it, while taking steps to challenge its validity through whatever channels are appropriate. Pedeleose v Department of Defense , 110 M.S.P.R. 508 , ¶ 16 (2009) . Management has a fundamental right to expect that its decisions will be obeyed and its instructio ns carried out. Id. Here, the 4 agency instructed the appellant by email on March 3, 2014, to schedule his attend ance at a fact-finding meeting because he had not sub mitted medical documentation in support of his request for FMLA leave for December 11, 201 3. IAF, Tab 8 at 115, 12 5-26. The appellant responded on March 5 , 2014, without answering the agency’s specific request regarding his availability for the meeting , and instead asked to meet with Human Resources . Id. at 124. He also stated that he intended to speak with his union about receiving outside representation , and he resubmitted his FMLA application. Id. at 125 -26. In the 2 weeks that followed, the appellant failed to set a date for a fact -finding meeting , despite his immed iate supervisor ’s March 24, 2014 email asking him whether he was refusing to participate in the fact finding . Id. at 124. A s of that date, the appellant still had not indicated whether he would attend the meeting. Id. Although he asserted that he neede d time to secure representation , he did not comply with the instructions in his supervisor ’s email by setting a date and time for the meeting, even if he considered such a meeting to be unnecessary or the request to be a form of harassment . See id. at 124-25; PFR File, Tab 1 at 6 . He has not provided any credible evidence that compl ying with his immediate supervisor’s instructions would have caused irreparable har m or placed him in a dangerous situation . See Pedeleose , 110 M.S.P.R. 508 , ¶ 17. Indeed, attending such a meet ing m ay have assisted the appellant in obtaining the proper documentation for the December 11, 2013 absence . ¶7 The second specification of Failure to Follow Instructions arose from the appellant’s failure on January 2 9, 2014, to correct the agency’s weekly Physical Medicine and Rehabilitation Report. IAF, Tab 8 at 115. The appellant had been responsible for preparing this report for a number of years , and his responsibility included correctin g the report before it s release each week . Id. at 115, 130 ; Hearing Compact Disc ( HCD ) (testimony of the appellant’s immediate supervisor ). The appellant’s immediate supervisor copied the Acting Assistant Chief, an employee who had on occasion served as the appellant’s acting 5 supervisor (acting supervisor) , on an email the immediate supervisor sent to the appellant regarding corrections the appellant needed to complete for the report. IAF, Tab 8 at 130; HCD (testimony of the appellant’s immediate and acting supervisors ). The acting supervisor testified that she received the email as a courtesy copy because the immediate supervisor had sent it in response to an email message from the appellant, which the acting supervisor also had received . HCD (testimony of the acting supervisor ). The appellant asserts that his acting supervisor was jointly responsible for making the corrections . PFR File, Tab 1 at 7-10. The appel lant postulates that the agency coached his acting supervisor to deny her responsibility for the report when she testified at his hearing . Id. at 8. ¶8 The appellant, however, presented no proof of his allegation s regarding his acting supervisor, who testifi ed that it was the appellant’s sole responsibility to prepare the reports. The administrative judge strongly relied on the unrebutted testimony from the appellant’s immediate and acting supervisor s, both of whom she found to be credible pursuant to her analysis under the Hillen factors. ID at 7-8; see Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (listing factor s that an administrative judge may consid er when assessing a witness’ s credibility) . The administrative judge’s Hillen analysis addressed demeanor evidence. ID at 7. The Board must defer to an administrative judge ’s credibility determinations when they are bas ed, explicitly or implicitly, on observ ing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Sufficiently sound reasons for overturning a n administrative judge’s demeanor - based credibility determinations include findings tha t are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Faucher v. Department of the Air Force , 96 M.S.P.R. 203 , ¶ 8 (2004). The appellant has not offered any such reasons for overturning the credib ility findings here. 6 ¶9 The appellant further asserts that the agency waited 4 to 5 months after the incident to bring the charge, and that the charge itself was inconsistent with his good job performance. PFR File, Tab 1 at 10-11. Even if the appellant’s misconduct generally was inconsistent with his performance history, t he agency proved that it occurred . ID at 3 -8. Although a charge may be dismisse d if an agency’ s delay in proposing the adverse action is unreasonable and the delay prejudiced the employee’ s abili ty to defend against the charge, Messersmith v. General Services Adminis tration , 9 M.S.P.R. 150 , 155 (1981) , the appellant has not alleged such prejudice . In any event, we find that t he delay in bringing the charge does not appear to be unreasonable on its face or to have prejudiced the appellant’s ability to mount a defense . ¶10 The appellant’s remaining objections on review pertain to the administrative judge’s finding s on the issues of discrimination , including a hostile work environment and retaliation for prior EEO activity . ID at 10-21. The appellant argues that the adverse action in this appeal is intended to sully his reputation and diminish his chances for promotion. PFR File, Tab 1 at 2-3, 18 -19. He cont ends that his circumstances are emblematic of a larger problem: The majority of agency supervisors are Caucasian males, and persons of color are underrepresented in management.2 Id. at 15 -16. The appellant cites as an example of this problem the fact th at the agency had not yet “boarded” him for 2 The appellant include d with his petition for review pages from a document entitled Commission on Care Final Report , dated June 30, 2016, to support his contention that Caucasian men are overrepresented in agency management. PFR File, Tab 1 at 21 -27. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due dil igence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). Although the Final Report was issued on the same day as the initial decis ion and would be considered new evidence, it does not meet the Board’s standard for materiality , in that it is not of sufficient weight to warrant an outcome different from that of the initial decision . See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). The report pertains to the entire veterans’ health care system, and not just the conditions at the appellant’s facility. It also d oes not address the specific allegations in the appellant’s appeal . 7 promotion.3 Id. at 12 -13, 16 -17. He similarly argues that the administrative judge failed to allow him to present evidence of his credentials , which show that his job qualifications exceed ed those of his superv isors. Id. at 17. Regarding his discrimination claim related to the suspension at issue in this appeal , the appellant asserts that both his immediate and acting supervisor s refuse d to acknowledge that he is African -American ,4 and that the suspension is part of a pattern of “covert racism .” PFR File, Tab 1 at 12-13. Regarding his claim of retaliation for EEO activity, the appellant asserts that the agency ’s actions against him, including the request to schedule a fact -finding meeting a nd the suspension itself, closely followed his prior EEO activity and occurred 4 to 5 months after the events underlying those actions . Id. at 4-5, 10-11. He further asserts that the agency officials ’ possible reference to his EEO activity during a discu ssion of a personnel action evidences their retaliatory animus. Id. at 16. ¶11 The appellant bore the burden of proof on the issues of discrimination and retaliation , and he chose not to testify . ID at 12; 5 C.F.R. § 1201.56 (b)(2)(C). On review, he explained his fear that, if he testified, it might “elicit very emotional responses that he could not control.” PFR File, Tab 1 at 18. The appellant, however, could have offered a statement under oath regarding his claims , and such a statement would have had evidentiary value . Truitt v. Department of the Navy , 45 M.S.P.R. 344 , 347 (1990) ( explaining that sworn statements that are not rebutted are competent evidence of the matters asserted 3 Here, the appellant is referencing the agency’s failure to promote him since he was converted from a competitive -service Title 5 employee to a Title 38 employee in 2008 . IAF, Tab 13 at 2 -3. 4 The appellant’s immediate supervisor testified that he is Hispanic and that he is unaware of the appellant’s race. He stated that the appellant never informed him of his race, and that he is unaware of the appellant’s age. HCD (testimony of the appe llant’s immediate supervisor ). 8 therein). Instead, his representative set forth his allegations in the pleadings.5 IAF, Tab 13. The statements of a party’ s representative in a pleading , however, do not constitute evidence . Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995). ¶12 In making her findings, t he administrative judge relied upon the testimony of various agency witnesses, including the appellant’s supervisor, the proposing official, and the deciding official . ID at 12 -15, 17 -21. Based in part on demeanor evidence, she found that t hese officials testified credibly that their actions were not motivated by discrimination or retaliation . ID at 14, 20 -21. The Board will defer to such credibility determinations un less it has “sufficiently sound ” reasons for overturning them . Haebe , 288 F.3d at 1301 . The administrative judge also considered various other factors in assessing witness credibility, including witness bias, or lack thereof , and the consistency of the w itnesses with one another and with other record evidence. ID at 14 -15, 19 -21; see Hillen , 35 M.S.P.R. at 458. The appellant h as not identified any reason to overturn these findings other than the mere fact that he disagrees with them . See Faucher , 96 M.S.P.R. 203 , ¶ 8. ¶13 The administrative judge considered the evidence the appellant presented in support of his allega tions of discriminat ion and retaliat ion. ID at 13 -14, 18-19. Even after taking such evidence at face value, she found that he had offered little information other than unsupported allegations to show that his race or age was a motivating factor in the su spension . ID at 14-15; see Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22. She likewise found that the appellant offered no direct evidence of retaliatory motive in his suspension, ID at 19, and the circumstantial evidence he offered was not probative of retaliation, ID at 19-20. She therefore found that the appellant did not show that the 5 Although the appellant’s representative signed the response to the administrative judge’s o rder on affirmative defenses under penalty of perjury, the appellant himself made no declaration or affidavit in support of th e pleading. IAF, Tab 13 at 56. 9 proposing and deciding officials had any motive to retaliate against him for his prior EEO activity or his Board appeals. ID at 20 -21. We agree with these findings. ¶14 Accordingly, we find that the appellant has offered no reason to disturb the administrative judge’s findings, and we thus affirm the initial decision .6 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 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. 6 The appellant also reference s an additional 14 -day suspension imposed by the agency based on different charges, which is still pending at the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. PFR File , Tab 1 at 18. That suspension is not before the Board in the instant appeal. IAF, Tab 21 at 1 -2. We also find no error in the administrative judge’s denial of the appellant’s request to consolidate his Board appeal with his three pending EEOC cases, which include the 14-day suspension. ID at 2 n.6. 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 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the 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 11 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 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: 12 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.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 8 The original statutory provision that provided for judicial review of certain whistlebl ower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat . 1510. 13 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	WASHINGTON_LIONEL_DA_0752_15_0413_I_1_FINAL_ORDER_2002850.pdf	2023-02-15	null	DA-0752	NP
3,531	https://www.mspb.gov/decisions/nonprecedential/MARQUIZ_JOSHUA_SF_4324_15_0099_A_1_FINAL_ORDER_2002930.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSHUA MARQUIZ, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER SF-4324 -15-0099 -A-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brian Lawler , Esquire, San Diego, California, for the a ppellant . Wayne G. Carter, Jr. , Santa Ana, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Vice Cha irman Harris issues a separate opinion concurring in part and dissenting in part. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which awarded attorney fees in the amount of $40,587.50 . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant filed a Uniformed Services Emp loyment and Reemployment Rights Act of 1994 (USERRA) appeal that, inter alia, alleged the agency improperly refused to pay him differential pay—the difference betwe en his civilian and military pay —for a period of active duty training between October 2014 a nd April 2015. Marquiz v. Department of Defense , MSPB Docket No. SF -4324 -15-0099 -I-1, Initial Appeal File (IAF), Tab 1. After developing the record, the administrative judge granted the appellant’s request for corrective action. IAF, Tab 19, Initial Dec ision . Although the agency filed a petition for review, the two sitting Board members could not agree on a disposition. Marquiz v. Department of Defense , MSPB Docket No. SF -4324 -15-0099 -I-1, Split Vote Order (July 12, 2016). Therefore, the initial decis ion became the Board’s final decision. Id. ¶3 The appellant filed a motion seeking attorney’s fees. Marquiz v. Department of Defense , MSPB Docket No. SF -4324 -15-0099 -A-1, Attorney Fee 3 File (AFF), Tabs 1, 5.2 The administrative judge granted the motion, in part, and ordered the agency to pay $40,587.50 in attorney fees. AFF, Tab 11, Addendum Initial Decision (AID) at 15. In short, he found that while the appellant’s attorney sought both a higher rate and a higher number of reimbursable hours, the attorney was entitled to only $425 per hour, for 95.5 hours. AID at 11, 14. The appellant has filed a petition for review. Marquiz v. Department of Defense , MSPB Docket No. SF -4324 -15-0099 -A-1, Addendum Petition for Review (APFR) File, Tab 1. The agency has fil ed a response. APFR File, Tab 3. ¶4 If an individual files a direct USERRA appeal with the Board, the administrative judge has discretion to award “reasonable attorney fees” if the Board issues an order requiring the agency to comply with USERRA. 38 U.S.C. § 4324 (b), (c)(2), (4); Doe v. Department of State , 2022 MSPB 38, ¶ 6. In calculating what constitutes “reasonable attorney fees” under various statutes, the Board has found that the most useful starting point is to multiply the hours reasonably spent on the litigation by a reasonable hourly rate. Doe, 2022 MSPB 38, ¶ 6. This is refer red to as the “lodestar” method for calculating fees, and it is the appropriate method for calculating fees under USERRA. Id. ¶5 As stated above, the administrative judge found that the appellant was entitled to a rate less than that claimed, as well as a total number of hours less than that claimed. The appellant challenges both on review, and so we will address each in turn. APFR File, Tab 1. The administrative judge properly reduced the hourly rate of the appellant’s attorney fees. ¶6 Specific to the instant appeal, the Board recently considered an attorney -fee petition under similar circumstances. The same attorney represente d the appellants in each case; each was a successful USERRA claim concerning differential pay; e ach involved a fee agreement that did not reflect an hourly rate; 2 The parties appeared to agree on the proper recovery amount for the appella nt— approximately $5,300. AFF, Tab 10 at 3. 4 and each included a fee request before the Board of $650 per hour. Compare, e.g., AFF, Tab 1, with Doe, 2022 MSPB 38, ¶¶ 2 -3. The administrative judge in Doe found the ass erted rate unreasonable, instead awarding fees at a rate o f $425 per hou r. Doe, 2022 MSPB 38, ¶ 4. In an Opinion and Order, we affirmed. Id., ¶¶ 6-15. For all the same reasons, we reach the same conclusion today. ¶7 The appellant has presented a number of arguments pertaining to his requested rate of $650 per hour, but we find each unavailing. APFR File, Tab 1 at 9-14. For example, the appellant argues that his representative’s expertise in the field of USERRA warrants the higher rate. Id. at 10 -11. However, we considered similar arguments in Doe, for the same representative, and found that $425 per hour was th e reasonable rate. Doe, 2022 MSPB 38, ¶ 12. He also argues that a Federal court has awarded him fees at a rate of $650, so the Board should award the same here . APFR File, Tab 1 at 11 -12. But again, we considered sim ilar arguments in Doe, for the same representative, and found otherwise. Doe, 2022 MSPB 38, ¶¶ 9-11. The appellant also cites his representative’s awar d in a case settled before the Board as supporting the requested rate, rather than the administrative judge’s reduced rate. APFR File, Tab 1 at 13. Onc e more, we already rejected that argument in Doe. Doe, 2022 MSPB 38, ¶ 13. The administrative judge properly reduced the number of reimbursable hours.3 ¶8 In his initial fee request, the appellant alleged 196.8 billable hours.4 AFF, Tab 1 at 26 -28. The administrative judge reviewed the request and warned that a 3 Although Doe addressed the reasonableness of the hourly rate requested under similar circumstances , it did not address the reasonableness of the hours requested, because that matter was not raised by eith er party. Doe, 2022 MSPB 38, ¶ 6. Therefore, Doe does not provide any guidance on the reasonableness of the hours requested in this appeal . 4 As a result of the appellant’s pleadings above and beyond the initial fee petition , the appellant requested an additional 16.7 hours. AFF, Tab 3 at 5, Tab 5 at 8, Tab 9 at 8. In concert with the attorney -fee petition for review currently before us , the appellant now re quests an additional 11 billable hours. APFR File, Tab 1 at 14. 5 large number of those hours appeared to be inadequately explained, inadequately supported, or duplicative. AFF, Tab 8 at 3. The appellant filed a response, refusing to provide additional details about the hours expended, citing attorney -client privilege and attorney work product. AFF, Tab 9 at 6 -7. Subsequently, the administrative judge found that only 95.5 of the hours requested were reasonable and adequatel y supported by the record. AID at 14. ¶9 The burden of establishing the reasonableness of t he hours claimed in an attorney -fee request is on the party moving for an award of attorney fees. Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662 , ¶ 11 (2011). The party seeking an award of fees should submit evidence supporting the hours worked and exclude hours that are excessive, redundant, or otherwise unnecessary. Id. The administrative judge need not automatically accept claimed hours, but may disallow hours for duplication, padding, or frivolous claims, and impose fair standards of efficiency and economy of time. Id. ¶10 Generally speaking, the appellant’s representative prepared the initial appeal, he prepared one substantive prehearing submission, he participated in an hour -long oral argument, he prepared a response to the agency’s petition for review, and he prepared the fee petition curre ntly before us. IAF, Tabs 1, 15, 18; Marquiz v. Department of Defense , MSPB Docket No. SF -4324 -15-0099 -I-1, Petition for Review File, Tab 3; AFF, Tab 1. As further detailed in the addendum initial decision, the initial appeal contained limited argument s of consequence. AID at 2-4, 9, 12; see IAF, Tab 1. Among other things, the pleading contained block quotations from statutes, but no case law. IAF, Tab 1. In addition, it contained a section pertaining to the waiver of filing fees, despite the Board having no such filing fee, IAF, Tab 1 at 2, and a request for class certification that was wholly unsupported, compare id. at 7-10 (seeking a class action on behalf of agency employees mobilized to active duty any time after September 14, 2001), with IAF, Tab 4 (denying the class certification because, inter alia, the statute at issue was not enacted until 2009 and did not apply retroactively). 6 ¶11 As also detailed in the addendum initial decision, it was the administrative judge , not the appellant’s representative, who identified the only pertinent precedent relevant to the instant appea l—a decision from the Office of Compliance. AID at 13; IAF, Tab 4 at 2. Although the appellant’s representative then prepared a prehearing submission and participate d in an hour -long oral argument, both generally focused on that which previously was identified by the administrative judge , without adding much of substance. AID at 9, 12 -13; IAF, Tabs 15, 18. Moreover, the administrative judge correctly noted that the issue at hand was a question of law, rather than a question of fact, calling in to doubt the extensive hours the appellant’s attorney billed for “[c]omm w client.” AID at 13. ¶12 As previously stated, it is the appellant’s burden to establish the reasonablenes s of the hours claimed in this matter . Supra ¶ 9. While the entirety of the hours claimed may be reasonable, we agree with the administrative judge’s determination that the appellant failed to meet his burden of establishing their reasonableness, even in the face of specific warning. Under the circumstances, only some of which is described above, the appellant’s billing statements are largely insufficient. The descriptions of his work consist of cursory notes such as “legal research” and “[c]omm w clien t” or “[c]omm w consultant.” AFF, Tab 1 at 26-28. They do not contain any additional details that could bolster the claim of reasonableness, such as the topics researched, the type of consultant(s) used, why all the communication with the client was nece ssary for a purely legal question, or even if all of that communication was with the appellant in this appeal, rather than a mix of the appellant and others that he hoped to include in his proposed class action. ¶13 On review, the appellant has once again arg ued that all the billed hours were reasonable, without providing particularized arguments about specific hours that were disallowed or further explanation of what the billed hours consisted of. APFR File, Tab 1 at 7 -9. Citing a number of court cases from the Northern District of California, the U.S. Court of Appeals for the Ninth Circuit, and the 7 Supreme Court of California, t he appellant reasserts attorney -client privilege and attorney work product as preventing disclosure of additional billing details. Id. at 7-9. However, his reliance on those authorities is of little consequence because they are not binding on the Board. See, e.g. , Mynard v. Office of Personnel Management , 108 M.S.P.R. 58, ¶¶ 13-14 (2008) (recognizing that decisions by the U.S. Court of Appeals for the Federal Circuit are controlling authority for the Board, but other circuit courts and district courts are not ). Moreover, although the cited authority con cerns attorney -client and work product privileges, generally, none are persuasive in the context of the issue at han d—whether the appellant’s representative can rely on the most cursory description of billable hour s to establish their reasonableness. ¶14 While the appellant has asserted attorney -client and work product privileges, he has not provided a detailed account of how they apply to the specific information at issue. See Gangi v. U.S. Postal Service , 97 M.S.P.R. 165 , ¶ 23 (2004) (recognizing that, under the appropriate circumstances, a party may invoke a common law privilege in refusing to m ake a disclosure during Board procedures, but evidentiary privileges should not be lightly granted). He has not explained, for example, how attorney -client privilege prevents him from disclosing even the most basic information about his billing, such as a general accounting for why more than 20 hours for client communication was reasonable in this case, which involved a purely legal question and no factual dispute of significance. See generally Grimes v. Department of the Navy , 99 M.S.P.R. 7 , ¶ 6 (2005) (recognizing that attorney -client privilege is intended “to encourage full and frank communications between attorneys and their clie nts”) (quoting Upjohn Co. v. United States , 449 U.S. 383 , 389 (1981)). He has not explained how work product privilege prevents him from disclos ing a general accounting of who he consulted with or what types of legal research he conducted. See generally In re Subpena Addressed to the Office of Special Counsel , 20 M.S.P.R. 245 , 248 (1984) (discussing the work product privilege for documents prepared in anticipation of 8 litigation). In fact, the appellant repeatedly asserts that disclosure of additional information “could dis close” information intended to be confidential or “could reveal” the attorney’s work product. APFR File, Tab 1 at 7 -8. While that may be true, it also appears true that the appellant’s representative could have tailored his billing descriptions according ly, to maintain appropriate confidentiality but still establish the reasonableness of his billing hours. Although we recognize and agree with the importance and ethical requirements of attorney -client communications, the appellant’s representative did not follow the administrative judge’s instructions in this case and provide the necessary information to award fees for this purpose , nor did he provide a persuasive reason for not providing that information in support of his fee request . Therefore, we find no basis for disturbing the administrative judge’s determination regarding the number of reimbursable hours. ¶15 In sum, we deny the appellant’s petition and affirm the addendum initial decision, awarding attorney fees of $40,587.50. We also deny the request for additional fees the appellant has claimed for work performed since the addendum initial decision. ORDER ¶16 We ORDER the agency to pay the attorney of record $4 0,587.50 in fees. The agency must complete this action no later than 20 days after the date of this decision. See generally Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204 (a)(2)). ¶17 We also ORDER the agency to tell the appellant and the attorney promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant and the attorney to pro vide all necessary information that the agency requests to help carry out the Board’s Order. The appellant and the attorney, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). 9 ¶18 No later than 30 days after the agency tells the appellant o r the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that issued the init ial decision on this appeal, if the appellant or the attorney believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant or the attorney believes the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. See 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS5 You may obtain review of this fin al decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the righ ts described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 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. 10 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. 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 11 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 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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: 12 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 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 Rev iew Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other cir cuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 SEPARATE OPINION OF CATHY A. HARRIS, CON CURRING IN PART AND DISSENTING IN PART in Joshua Marquiz v. Department of Defense MSPB Docket No. SF -4324 -15-0099 -A-1 ¶1 For the reasons explained by the majority, I agree that the administrative judge properly reduced the lodestar figure by adjusting the claimed rate downward from $650 to $425 per hour, and by d isallowing a portion of the claimed hours. Many of the hours claimed seem excessive on their face, and the sparse billing records (which the appellant failed to supplement even when given the opportunity) are insufficient to justify the time claimed. ¶2 Howe ver, I would not have reduced the hours claimed for “client communication,” and I respectfully dissent on that issue. The appellant’s attorney is licensed to practice law in the State of California and is a member of the San Diego County Bar Association. Attorney Fees File (AFF) , Tab 1 at 36. Under the California Rules of Professional Conduct , Rule 1.4, he is specifically required to keep his clients apprised of the status of their cases, consult with them about means to accomplish their objectives, expl ain legal matters to them sufficiently for them to make informed decisions, and otherwise pursue open and effective communications with his clients. I am unaware of any United States jurisdiction that does not have similar ethical requirements. See, e.g. , N.Y. Rules of Prof. Conduct R. 1.4; Tex. Disciplinary Rules of Prof. Conduct R. 1.03; ABA Model Rule 1.4. Furthermore, according to the San Diego County Bar Association, “ California attorneys are constantly reminded that the number one reason for complaints to the state bar about attorneys is the failure to respond to requests for information from clients. ” Michael Crowley, Ethics in Brief, Communication with Clients —Utmost Importance , San Diego County Bar 2 Association, https://www.sdcba.org/?pg=Et hics-in-Brief -2017 -07-24 (last visited Feb. 13, 2023 ). This pattern of client complaints and bar referrals obtains, without exception, in other jurisdictions as well. See Nancy J. Moore, Revisions, Not Revolution: Targeting Lawyer/Client Relations, Elect ronic Communications, Conflicts of Interest , 88-DEC A.B.A. J. 48 (2002) (“The most frequent complaint of clients is that their lawyers do not communicate with them. ”); see also, e.g. , Heidi S. Alexander, Easy Automation , 56-OCT Ariz. Att ’y 24 (2019) (“ Poor client communication nearly always makes the top of the list for the most popular bar complaints .”); Martin Cole, Summary of Private Discipline , 72-MAR Bench & B. Minn. 12 (2015) (“ As is true every year, a lack of diligence and/or communication with a cl ient are the most common reasons for receiving a complaint, and also for receiving an admonition .”). ¶3 Given the universal ethical obligation for attorneys to keep their clients apprised of the status of their cases, the Board should be cautious about discouraging attorney/client communications or attaching additional costs for attorneys trying to meet thei r ethical obligations. In addition, for both practical and confidentiality reasons, this category of billing is the least susceptible to detailed description in a petition for attorney fees. I therefore believe that the Board should err on the side of aw arding such fees, even absent very detailed explanation , and disallow hours claimed for attorney/client communication only when they are clearly excessive . Although the 23 hours claimed in this case seems rather high under the circumstances, I do not thin k that it is clearly excessive . According to the attorney’s billing records, 8 hours were spent in client communication prior to the filing of the appeal, which is reasonable under these circumstances. AFF, Tab 1 at 26. The remain ing client communication hours are roughly proportionate to litigation events in the case. For example, the attorney recorded 2.4 hours of client communication between the prehearing conference and the hearing. Id. at 27 . I further observe that the part ies engaged in settlement and mediation efforts between December 2014 and February 2015, 3 and that 11 (nearly half) of the client communication hours were logged during that time period. Initial Appeal File, Tabs 8, 10, 12; AFF, Tab 1 at 26 -27. I therefor e disagree with the majority that more information was required in order to determine the relevance of these communications to the matters at issue in this case. ¶4 For these reasons, I would restore to the lodestar calculation the 13 hours of client communic ation that the administrative judge disallowed . Having restored this time to the lodestar, I would also add to the lodestar calculation an appropriate number of hours to reflect some limited success for the appellant on petition for review. /s/ Cathy A. Harris Vice Chairman	MARQUIZ_JOSHUA_SF_4324_15_0099_A_1_FINAL_ORDER_2002930.pdf	2023-02-15	null	SF-4324	NP
3,532	https://www.mspb.gov/decisions/nonprecedential/CAMPBELL_PAUL_J_SF_0752_16_0688_I_1_REMAND_ORDER_2002931.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PAUL J. CAMPBELL, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER SF-0752 -16-0688 -I-1 DATE: February 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 Brook L. Beesley , Alameda, California, for the appellant. Christine J. Kim , Esquire, Stockton, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal and dismissed his suspension claim as moot. For the reasons discussed below, we GRANT the appellant’s petition for review , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 VACATE the initial decision, and R EMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant served as a GS -0081 -07 Firefighter for the agency’s Defense Logistics Agency in San Joaquin, California. Initial Appeal File (IAF), Tab 1 at 2. The agency asserts that this position is “noncritical sensitive.” IAF, Tab 3, Subtab 4C at 1, Subtab 4F at 1. On October 16, 2014, the appellant’s supervisor became aware of an issue concerning the appellant’s security clearance . IAF, Tab 1 at 13. In light of this information, he immediately placed the appellant on administrative leave . Id. Subsequently, t he agency’s Washington Headquarters Services Clearance Appeals Board denied the appellant’s appeal of its Consolidated Adjudications Facility ’s decision to deny him a security clearance and the concomitant eligibility to occupy a sensitive posi tion. IAF, Tab 3, Subtabs 4D-4E. In November or December 2015 , the agency unilaterally changed the appellant’s leave status for the period December 27, 2014, to November 14, 2015, to leave without pay (LWOP) . IAF, Tab 3, Subtab 4B at 1, Tab 7 at 41 -42. As a result, the Defense Finance and Accounting Service (DFAS) assessed the appell ant with a debt of $76,414.40. IAF, Tab 7 at 41 -42. ¶3 In February 2016, t he agency proposed the appellant’s removal on a single charge of Inability to Occupy a Sensitive Posi tion. IAF, Tab 3 , Subtab 4C . After hearing his oral reply to the notice of proposed removal, and after the agency unsuccessfully searched to find a nonsensitive position for which the appellant qualified, the deciding official sustained the charge and the agency removed the appellant, effective July 15, 2016. Id., Subtab 4B. ¶4 The appellant filed a Board appeal in which he contended that the agency’s action did not promote the efficiency of the service. IAF, Tab 1. He also alleged that the Department of Hearings and Appeals (DOHA) administrative judge who adjudicated his access revocation denied him “certain hearing procedures.” IAF, 3 Tab 7 at 4. He contended that his retroactive placement in enforced leave status constituted a constructive suspension . Id. During the proceedings below, t he appellant filed two motion s to compel discovery . IAF, Tab s 9-10. The agency opposed his second motion to compel and mov ed to dismiss the appeal , arguing that there was no dispute that the appellant’s position required his eligibility to occupy a sensitive position, that his eligibility was revoked , and that the agency afforded him notice and an opportunity to be heard befo re it removed him . IAF, Tabs 11, 13. The agency also argued that because it had taken action to cancel the appellant’s indebtedness, his constructive suspension claim was moot. Id. Without ruling on the appellant’s motions to compel, t he administrative judge issued a close of the record order in which he agreed with the agency that there were no material facts in dispute. IAF, Tab 14. H e advised the parties that he would decide the appeal based on the written record and afford ed them an opportunity to supplement the file with additional argument and evidence. Id. The agency made a closing submission, IAF, Tab 15, but the appellant did not. ¶5 Without holding the hearing the appellant requested, IAF, Tab 1 at 2, the administrative jud ge issued an initial decision affirm ing the agency’s action removing the appellant, IAF, Tab 16, Initial Decision (ID). He found that the agency designated the appellant’s position as noncritical sensitive and his eligibility to occupy a sensitive positio n was revoked by the appropriate agency authorities after he had received notice and an opportunity to respond. ID at 3. The administrative judge also denied the appellant’s harmful error claims .2 Id. As to the penalty of removal, the administrative ju dge concluded that the appellant failed to show that the agency had any obligation to transfer him to a nonsensitive position. ID at 4. ¶6 The administrative judge also found that the agency improperly suspended the appellant when it retroactively placed h im in an LWOP status. ID at 4 -5. 2 In doing so, the administrative judge improperly characterized the appellant’s claim as an alleged denial of due process. ID at 3. 4 Nonetheless, he found that the suspension claim appeared to be moot in light of agency efforts to reimburse the appellant for the resulting overpayment . ID at 5 ; IAF, Tab 15 at 4. The administrative judge advised the ap pellant that he could refile his appeal if the agency did not resolve the overpayment . ID at 5 n.2 . ¶7 In his petition for review, the appellant contend s that the administrative judge improperly failed to rule on his motion to compel . Petition for Review (PFR) File, Tab 1 at 2-4. He also argue s that he was entitled to a hearing on his removal claim . Id. at 3-5. He dispute s the administrative judge’s findings that his position required a security clearance and that the agency complied with the applicable statutes and regulations. Id. at 6. He also argue s that his suspension was not moot. Id. at 4. The agency responded in opposition to the appellant’s petition for review. PFR File, Tab 3. The appellant filed a r eply to the agency’s response. PFR File, Tab 4. In addition, the Board issued an order to the parties to provide evidence and argument addressing the mootness issue, to which both parties responded. PFR File, Tabs 5 -9. DISCUSSION OF ARGUME NTS ON REVIEW The appeal must be remanded for a hearing. The appellant is entitled to a hearing on his removal claim. ¶8 As noted above, the administrative judge decided the appeal without holding a hearing, finding, among other things , that “it cannot reasonably be disput ed that the appellant’s position was designated as noncritical sensitive.” ID at 3. The appellant asserts that the administrative judge erred in affirming his removal without holding a hearing. PFR File, Tab 4 at 2. We agree. ¶9 Section 7701(a)(1) of Title 5 provide s that an appellant is entitled to a hearing in any action appealable to the Board under any law, rule, or regulation. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 , ¶ 24 (2017). Because of this provision, the Board does not have the authority to grant summary 5 judgment . Crispin v. Department of Commerce , 732 F.2d 919 , 922, 924 (Fed. Cir. 1984) . ¶10 Because we are remanding this case for a hearing, we do not de cide the other issues regarding the appellant’s removal that he raises on review.3 These include whether his position required a security clearance , whether the agency failed to comply with its own regulations in revoking his security clearance, and wheth er the agency should have reassigned him as an alternative to removal . PFR File, Tab 1 at 6; see Palafox v. Department of the Navy , 124 M.S.P.R. 54 , ¶ 8 (2016) (explaining the Board’s limited scope of review in an appeal of an adverse action based on the suspens ion of an appellant’s access to classified information ); Ingram v. Department of Defense , 120 M.S.P.R. 420 , ¶ 10 (2013) (explaining the scope of review in an appeal of an adverse action based on the denial of a security clearance ). These issues should be resolved on a fully developed post -hearing record. See West v. Department of the Navy , 63 M.S.P.R. 86 , 89 (1994) (finding that the administrative judge erred by excluding testimony proffered to resolve the question of whether the pos ition at issue was subject to a security clearance requirement ). ¶11 On remand, the administrative judge should rule on the appellant’s motions to compel. IAF, Tabs 9 -10; see Rice v. Department of Agriculture , 97 M.S.P.R. 501, ¶ 19 (2004) . The appellant asserts that , if granted, his motions would have required the agency to provide information relevant to his arguments listed above . PFR File, Tab 1 at 1 -2, Tab 4 at 3-4; IAF, Tab 9, Exhibit A at 4. The agency argued below that one of the motions to compel was untimely filed. IAF, Tab 11 at 3. These issues are best addressed by the administra tive judge on remand. See 3 Similarly, because we are remanding the appeal , we need not address the appellant ’s October 30, 2020 motion for leave to file an additional pleading. PFR File, Tab 12. Upon remand, consistent with the Board’s regulations and this Remand Order, the appellant may submit additional evidence and argument concerning his appeal. 6 5 C.F.R. § 1201.41 (b)(4) (discussing the administrative judge’s authority to rule on discovery motions). ¶12 The appellant’s harmful error claim also warrants furth er consideration on remand. ID at 3. The appellant alleged that during a hearing before the agency’s DOHA , he was not allowed to present evidence that his position did not require a security clearance . IAF, Tab 3 at 16; PFR File, Tab 1 at 6. The Board’ s administrative judge concluded that the Boa rd could not review this claim because it required reaching the merits of the security -clearance determination. ID at 3. We disagree. ¶13 Under 5 U.S.C. § 7701 (c)(2)(A), the Board may not sustain an adverse action if the employee can show “harmful error i n the application of the agency’ s procedures in arriving at such decision.” Blatt v. Department of the Army , 121 M.S.P.R. 473 , ¶ 7 (2014) . As such, the Board may review whether the agency complied with its own procedures for revoking a securit y clearance and for taking an adverse a ction based on such revocation. Id. If, on remand, the administrative judge is unable to make a determination as to whether the agency committed error and whether such error was harmful without review ing the merits of the revocation decision , it may be appropriate to remand the matter to the agency to make a redetermination. See Doe v. Department of Justice , 118 M.S.P.R. 434 , ¶¶ 31-33 (2012) (finding it appropriate to remand to an agency to determin e whether its procedural error was harmful to its access -eligibility determination ). Such a remand would allow the Board to resolve the appeal without intruding into a matter within the agency’ s sole discretion . Id., ¶ 33. ¶14 In addition, the record does not reflect whether the appellant requested or received a final decision from the Personnel Security Appeals Board ( PSAB ) before the agency removed him. IAF, Tab 3, Subtab 4C at 1 , Subtab 4D. The parties may wish to address these issues on remand. The Board has found that the agency’s regulations prohibit taking an adverse action unless the employee was provided with a wr itten decision from the Department of Defense Consolidated 7 Adjudications Committee (CAF), the opportunity to respond to the CAF, a written decision stating the final reasons for the unfavorable administrative action, the opportunity to appeal to the releva nt PSAB, and a written decision from the PSAB.4 Blatt , 121 M.S.P.R. 473 , ¶¶ 2, 8. ¶15 As to the penalty of removal, the administrative judge concluded that the appellant failed to show that the agency had any obli gation to transfer him to a nonsensitive position. ID at 4. Although the appellant re argues the issue of penalty on review, we find it premature to address this finding here. PFR File, Tab 1 at 3 -4, 5-6; IAF, Tab 7 at 4. On remand, if the administrative judge finds that the agency has proven its charge and that the appellant has not prove n harmful error or otherwise raise d a valid defense, the administrative judge then may det ermine whether the agency was obligated to reassign the appellant. See Ryan v. Department of Homeland Security , 793 F.3d 136 8, 1371 -73 (Fed. Cir. 2015) (finding that the Board may not consider whether an agency should have reassigned an employee in connection with an adverse action based on a security -clearance determination unless an agency policy required such consideration ). If so, the administrative judge should determine whether the agency complied with its requirements . IAF, Tab 3, Subtab 4B at 3. The appellant’s suspension is not moot. ¶16 As the administrative judge properly found, the agency’s placing the appellant in an involuntary LWOP status retroactively from December 27, 2014, to November 14, 2015 , is an appealable nonconstructive suspension. Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 9 (2016); ID at 4-5. Although the 4 It appears that since the events at issue here, the agency has revised its security clearance procedures. See Rules and Regulations, 82 Fed. Reg. 1192 (Jan. 5, 2017) (indicating that the Department of Defense was removing its regulations in 32 C.F.R. part 154, and was in the process of revising its guidance regarding personnel security). However, neither party indicated below that the agency made a change to its guidance that impacts the instant appeal. If appropriate, the parties may address this issue on remand. 8 administrative judge found that the agency conceded that the appellant was not provided with notice and an opportunity to respond, we have been unable to locate the sourc e of this conclusion .5 ID at 4 -5. Rather, the agency argued that the suspension claim was moot without addressing any due process issues . IAF, Tab 13 at 1-3. ¶17 The agency indicated that it had begun to rectify the overpayment caused by its plac ing the appellant on LWOP , and the appellant had not raised any affirmative defenses related to his suspension claim, and so the administrative judge found no dispute that would warrant holding a hearing and dismissed the suspension claim as moot. ID at 5. The a dministrative judge informed the appellant that he could refile h is constructive suspension claim should the agency fail to rectify the situation . ID at 5 n.2. The appellant argues on review that the agency had only partially p aid him, and, as such , the appeal was not moot . PFR File, Tab 1 at 6, Tab 4 at 7. ¶18 Because the unsworn statements of the agency’ s representative in a pleading are not evidence and an agency’s representation that it intends to pay appropriate back pay does not constitute sufficient evidence for a claim to be deemed moot, the Board on review ordered the parties to provide evidence and argument addressing whether the appellant had received all of the relief he could have obtained had he prevailed before the Board. PFR File , Tab 5; see Haskins v. Department of the Navy , 106 M.S.P.R. 616 , ¶¶ 15, 20 (2007) ; Hendricks v. Department of the Navy , 69 M.S.P.R. 163 , 168 (1995) . The parties both responded and filed replies to each other’s response. PFR File, Tabs 6 -9. In a 5 It appears that, prior to initiating collections, DFAS notified the appellant of the reasons he was assessed a debt and provided him with an opportunity to d ispute it. IAF, Tab 7 at 41 -42; see Holton v. Department of the Navy , 123 M.S.P.R. 688 , ¶ 29 (2016) (discussing th e due process righ t of tenured public employees to minimum due process of law, i .e., prior notice and an opportunity to respond) , aff’d , 884 F.3d 1142 (Fed. Cir. 2018) . We do not reach a conclusion here regarding whether the agency met the requirements of due process. 9 sworn declaration, the appellant averred that the agency has not addressed all of the pertinent back pay issues and failed to document its accounting of the $47,959.68 payment he received. PFR File, Tab 6 at 3 -5. In an unsworn filing, the agency asserts that the $47,959.68 represents the appellant’s net pay after withholding for taxes and benefits. PFR File, Tab 7. ¶19 The appellant ’s sworn statement that the agency has not paid him all appropriate back pay constitutes a nonfrivolous allegation that his a ppeal is not moot. Jasper v. U.S. Postal Service , 88 M.S.P.R. 27 , ¶ 9 (2001). The agency’s unsworn submission is insufficient to r efute the appellant’s sworn declaration. Haskins , 106 M.S.P.R. 616 , ¶¶ 15, 20. Therefore, we remand the appellant’s suspension cl aim to the administrative judge . Unless the agency meets its burden on remand to prove that it provided the appellant with status quo ante relief, the administrative judge should hold the appellant’s requested hearing on his suspension claim . See Harris v. Department of the Air Force , 96 M.S.P.R. 193 , ¶¶ 9, 11 (2004) (remanding an appeal to determin e whether the agency com pletely rescinded its removal of the appellant and returned him to status quo ante) . ORDER ¶20 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Wash ington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CAMPBELL_PAUL_J_SF_0752_16_0688_I_1_REMAND_ORDER_2002931.pdf	2023-02-15	null	SF-0752	NP
3,533	https://www.mspb.gov/decisions/nonprecedential/HUEY_REBECCA_SF_0752_16_0627_I_1_REMAND_ORDER_2002967.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD REBECCA HUEY, Appellant, v. DEPARTMENT OF LABOR, Agency. DOCKET NUMBER SF-0752 -16-0627 -I-1 DATE: February 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 Rebecca Huey , Concord, California, pro se. Amy R. Walker , Esquire, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal of her allegedly involuntary reduction in grade for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for rev iew, VACATE the initial decision, and REMAND the case to the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Office of Regional Operations for further adjudi cation in accordance with this Remand Order. BACKGROUND ¶2 The appellant requested and received a reassignment from her GS -12 position to a GS -7 position in December 2014 . Initial Appeal File (IAF), Tab 1 at 3, 5, Tab 5 at 2. She later filed a Board appe al alleging that her reduction in grade was involuntary and was compelled by her managers ’ harassing conduct . IAF, Tab 1 at 3, 5, Tab 5 at 4 -5. She requested a hearing. IAF, Tab 1 at 2. ¶3 The administrative judge issued an order instructing the appellant how to establish jurisdiction over her constructive adverse action appeal. IAF, Tab 11. The appellant submitted a response alleging that, between fiscal years 2011 and 2013 , her overall performance rating was lowered from Exemplary to Highly Effective to Effective, in retaliation for complaints that the appellant either brought herself or for which she served as a witness. IAF, Tab 12 at 4 -5. She alleged that her managers ignored her complaints of a hostile work environment, berated her in front of coll eagues, set her up to fail, subjected her to an inequitable and unrealistic workload that compelled her to work 26 days in a row , reduce d her telework agreement from 2 days to 1 day weekly and later revoked it entirely , denied her ad hoc telework requests , micromanaged her , made false accusations against her , and called her parents at their home to ascertain the appellant’s whereabouts . IAF, Tab 12 at 4-11. The appellant’s therapist purportedly prescribed her antidepressants and recommended the appellant take medical leave from October through December 2014 due to workplace stress. Id. at 10 -11. The appellant also filed medical notes that she submitted to the agency on or around September 2 and October 24, 20 14, in which her therapist recommended that the appellant be granted 2 telework days per week . IAF, Tab 5 at 24 -26, 30 -31. One week later, on October 31, 2014 , the agency suspended the appellant’s telework eligibility entirely . Id. at 47. 3 ¶4 The adminis trative judge issued an initial decision dismissing the appeal for lack of jurisdiction without holding a hearing . IAF, Tab 14, Initial Decision (ID). The appellant has filed a petition for review , and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board lacks jurisdiction over appeals of employees’ voluntary actions. O’Clery v. U.S. Postal Service , 67 M.S.P.R. 300 , 302 (1995), aff’d , 95 F.3d 1166 (Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401 (b)(9). However, the Board has recognized that employee -initiated actions that appear voluntary on their face are not always so. Spiegel v. Department of the Army , 2 M.S.P.R. 140 , 141 (1980). The Board may have jurisdiction over such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions. To establish Board jurisdiction over a constructive reduction -in-grade claim, the appellant must show (1) that she lacked a meaningful choice in the matter , and (2) it was the agency’s wrongful actions that deprived her of that choice. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013). When an employee alleges that the intolerable working conditions effectively deprived her of choice, she may need to show that she informed the agency of the existence of the objec tionable conditions and requested assistance or remediation from the agency. See Peoples v. Department of the Navy , 83 M.S.P.R. 216 , ¶ 8 (1999) , overruled on other grounds by Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 (2014) . If the appellant makes a nonfrivolous allegation of fact establishing Board jurisdiction, she is entitled to a hearing at which she must prove jurisdiction by preponderant evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) (en banc); Thomas v. Department of the Navy , 123 M.S.P.R. 628 , ¶ 11 (2016). ¶6 In dismissing this appeal for lack of jurisdiction, the administrative judge found that the appellant failed to make nonfrivolous allegations as to eac h element noted above . ID at 3 -8. For the reasons set fort h below, we find the 4 appellant made a nonfrivolous allegation of Board jurisdiction over the appeal , and we remand this appeal for further proceedings. ¶7 In finding the appellant failed to nonfrivolously allege that she lacked a meaningful choice in accepti ng a reduction in grade and that it was the agency’s wrongful conduct that deprived her of that choice, t he administrative judge cited Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000) , for the proposition that dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are generally not so intolerable as to compe l a reasonable person to resign. ID at 7 -8. In its response to the appellant’s petition for review, the agency cites Miller and Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 15, aff’d , 469 F. App’x 852 (Fed. Cir. 2011), and asserts that the appellant alleged little more than a difficult relationship with her supervisors. PFR File, Tab 3 at 11. ¶8 We disagree . The appellant allege d a continuing and increasing pattern of hostility by her managers, culminating in her need to take approximately 3 months of medical leave due to workplace stress, which was later diagnosed as post-traumatic stress disorder . IAF, Tab 5 at 4 -9, Tab 12 at 4 -11. The appellant stated that , at the time she requested a reduction in grade, she was “under extreme emotional stress at the prospect of having to return to [work] after [her] medical leave was to end on December 31, 2014.” IAF, Tab 5 at 4. Th e appellant also submitted medical documents to the agency that appear to have request ed a reasonable accommodation of 2 telework days per week; however, the agency cancelled the appellant’s telework eligibility entirely approximately 1 week after receiving the letter .2 IAF, Tab 5 at 24 -26, 30 -31, 47 . The Board has held that working outside of medical restricti ons is not a viable option for F ederal 2 The agency asserts that the appellant failed to engage in the interactive process for requesting reasonable accommodations. PFR File, Tab 3 at 10. The record is not developed on this issue and , at the jurisdictional stage, the Board will not weigh evide nce to resolve conflicting assertions. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). 5 employees and may constitute a nonfrivolous allegation that the employee lacked a choice in the acti on at issue . Bean, 120 M.S.P.R. 397 , ¶¶ 13-15. ¶9 We further find that t he appellant’s allegations are distinguishable from the facts alleged in Miller and Brown. The appellant in Miller did not allege that the agency violated his medical restrictions. E.g., Miller , 85 M.S.P.R. 310 , ¶¶ 12, 14, 16-20, 27 . Though the appellant in Brown alleged that the agency denied her request for an accommodation, the Board noted that she continued working for almost 2 1/2 years after the agency denied her request . Brown , 115 M.S.P.R. 609 , ¶ 17. The appellant here requested a transfer 1 1/2 months after the agency revoked her telework and before she w as to return from medical leave. While we note that the appellant allege d she had two pending equal employment opportunity ( EEO ) complaints at the time she requ ested a reduction in grade, we find that she nonetheless nonfrivolously alleged that return to the alleged hostile work environment pending resolution of her EEO complaints would have been detrimental to her health. E.g., IAF, Tab 5 at 4 ; cf. Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17 (2009) ( finding the appellant in a constructive removal appeal failed to nonfrivolously allege a reasonable person in his position would have resigned while the agency was pr ocessing his EEO complaints and had granted hi s accommodation request of additional leave beyond the requirements of the Family and Medical Leave A ct). Accordingly, w e find that the appellant has alleged sufficient facts that, if proven, could establish that she lacked a choice in accepting a reduction in grade and that it was the agency’s wrongful conduct that deprived her of that choice. ¶10 We also disagree with the administrative judge’s finding that the appellant failed to nonfrivolously allege that she notified the agency that she believed her request for reassignment was compelled by intolerable working condit ions. ID at 3-7. The administrativ e judge cited Peoples , 83 M.S.P.R. 216 , ¶¶ 8 -9, for the proposition that the appellant must demonstrate the agency’s knowledge of the intolerable working conditions to establish a culpable connection between the 6 objectionable conditions and the agency’s duty, if any, to alleviate the conditions. ID at 3. However, Peoples concerned appellants who alleged that they were forced to absent themselves because a coworker created intolerable workin g conditions. Peoples , 83 M.S.P.R. 216 , ¶¶ 2, 11. However, in a case such as this, in which the appellant claims that her supervisors harassed her, we find that she has sufficiently alleged that the agency was aware of her purported working conditions. IAF, Tab 12 at 4 -11; see O’Brien v. Department of Agriculture , 91 M.S.P.R. 139 , ¶¶ 7 -9 (2002) (finding that an appellant’s claim of harassment by a supervisor constituted a nonfrivolous allegation that his re tirement was involuntary so as to warrant a hearing). ¶11 The agency asserts that the appellant’s medical documentation was insufficient to put it on notice that the appellant believed her work ing conditions were intolerable. PFR File, Tab 3 at 9 -10. Howeve r, the appellant sent numerous emails to her supervisors alerting them of a purporte d hostile work environment in the months preceding her request for a reduction in grade . E.g., IAF, Tab 5 at 16 (“This false accusation is causing me undue stress a nd creates a hostile work environment .”), Tab 12 at 31 -32 ( “I wanted to alert you to this incident because it was the worst in what I perceive to be a pattern of behavior . . . that is creating a hostile work environment for me and the rest of the R&P Team .”), 49-50 (“This complete lack of response creates a hostile work environment for me because my customers become angry with me .”), 52 (“I feel that the emails you have been sending me regarding the review and this particular inquiry sheet are hostile in n ature .”), 70 -71 (“This decision to modify my telework agreement has caused and is continuing to cause me a great deal of emotional stress .”). The appellant’s November 2014 application for benefits from the Office of Workers ’ Compensation Programs (OWCP), which was provided to her supervisor , stated that the appellant’s “work -related stress and anxiety disorder are directly 7 attributable to trauma caused by work demands/environment.” IAF, Tab 5 at 42.3 Accordingly, we find that the appellant nonfrivolously alleged that the agency was on notice that she believed her working conditions were intolerable. ORDER ¶12 For the reasons discussed above, we remand this case to the Office of Regional Operations for further development of the record and a jurisdictional hearing in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 3 The agency notes that OWCP issued a May 6, 2015 determination finding that the appellant was not entitled to benefits. PFR File, Tab 3 at 9. However, OWCP’s May 2015 determination is irrelevant to whether the agency was on notice in December 2014 as to the appellant’s belief that her wo rking conditions were intolerable.	HUEY_REBECCA_SF_0752_16_0627_I_1_REMAND_ORDER_2002967.pdf	2023-02-15	null	SF-0752	NP
3,534	https://www.mspb.gov/decisions/nonprecedential/GIDDINGS_SONYA_PH_3443_22_0201_I_1_FINAL_ORDER_2003034.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SONYA GIDDINGS, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER PH-3443 -22-0201 -I-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sonya Giddings , Philadelphia, Pennsylvania, pro se. Laura VanderLaan , Esquire, Kansas City, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction . On petition for review, the appellant argues that she suffered a suitability action because the agency erred in finding her ineligible for a position because it incorrectly found t hat she failed to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 meet the minimum requirements of that position .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 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 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.3 5 C.F.R. § 1201.113 (b). 2 We have also considered, but do not find persuasive, the appellant’s claim of administrative judge bias because he has a “history” of ruling against her. Petition for Review (PFR) File, Tab 1 at 4 -5. The administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep -seated favoritis m or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). Absent his past rulings against her , the appellant has identified no action or statement of the administrative judge th at evidences such favoritism or antagonism. See Lee v. U.S. Postal Service , 48 M.S.P.R. 274 , 281 (1991) (explaining that fact that an admini strative judge has ruled against a party in the past, or mere conclusory statements of bias, do not provide suffic ient bases for disqualification) . 3 The appellant filed a motion to add to the record on review, stating that “new information” had become a vailable as a result of her Office of Special Counsel (OSC) complaint, which proves that the agency’ s Human Resources office committed “willful illegal actions.” PFR File, Tab 7. However, because the Board lacks jurisdiction over her appeal , it does not have the authority to address the merits underlying it, and thus, we deny her motion . Burton v. Department of the Air Force , 118 M .S.P.R. 210 , ¶ 16 (2012). Nevertheless, to the extent that the appellant is attempting to challeng e a matter raised in an OSC complaint before the Board, she may have the right to file an individual right of action appeal consistent with statute and the Board’s regulations. 3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeki ng such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not pr ovide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final de cision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please re ad carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must sub mit your petition to the court at the following address: 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 appropriat e in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of y our discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your 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 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 Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 day s of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petit ion to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 Presid ent on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jur isdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 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	GIDDINGS_SONYA_PH_3443_22_0201_I_1_FINAL_ORDER_2003034.pdf	2023-02-15	null	PH-3443	NP
3,535	https://www.mspb.gov/decisions/nonprecedential/CORDOVA_CHARA_L_SF_0845_21_0545_I_1_REMAND_ORDER_2003039.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARA L. CORDOVA, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0845 -21-0545 -I-1 DATE: February 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 Chara L. Cordova , Arcadia, California, pro se. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed a reconsideration decision issued by the Office of Personnel Management (OPM) that concluded that the appellant had received an overpayment of Federal Employees’ Retirement System (FERS) disability 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 retirement benefits and was not entitled to a wai ver of the overpayment . For the reasons discussed below, we GRANT the agency ’s petition for review , VACATE the initial decision, and REMAND the matter to the Western Regional Office for further adjudication in accordance with this Remand Order . ANALYSIS ¶2 Neither party disputes the administrative judge’s conclusion that OPM proved the existence and amount of the $21,102.00 overpayment at issue , which occurred as a result of the appellant’s concurrent entitlement to FERS disability retirement benefits and Social Security Administration ( SSA ) disability insurance benefits for the period of January 1, 2018, through March 30, 2020 . Initial Appeal File (IAF), Tab 12 at 29 -34, Tab 29, Initial Decision (ID) at 6-7; see 5 U.S.C. § 8452 (a); Johnston v. Office of Personnel Management , 70 M.S.P.R. 109, 112 -17, aff’d , 99 F.3d 1160 (Fed. Cir. 1996) (Table); 5 C.F.R. § 844.302 . Thus, the dispositive issue in this matter is whether the appellant is entitled to a waiver of the overpayment . We vacate the administrative judge’s conclusion that the appellant i s entitled to a waiver of the overpayment and remand the matter for further adjudication . ¶3 The appellant bears the burden of establishing her entitlement to a waiver by substantial evidence.2 5 C.F.R. § 845.307 (b). To establish entitlement to a waiver of an overpayment, the appellant must show (1) that she was without fault and (2) that recovery of the overpayment would be again st equity and good conscience. 5 U.S.C. § 8470 (b); Knox v. Office of Personnel Management , 107 M.S.P.R. 353 , ¶ 5 (2007); 5 C.F.R. § 845.301 . Here, the administrative judge concluded both that the appellant was without fault in creating the overpayment and that recovery of the same would be again st equity and good conscience. For 2 Substantial evidence is defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other r easonable per sons might disagree. 5 C.F.R. § 1201. 4(p). 3 the reasons set forth herein , we vacate these findi ngs and remand the matter for further adjudication . The administrative judge applied an incorrect legal standard in determining whether the appellant was at fault in creating the overpayment. ¶4 The administrative judge concluded that the appellant was without fault in creating the overpayment because, although it was undisputed that she had been advised of her obligation to immediately inform OPM of her receipt of SSA benefits, she was not awarded SSA benefits until January 2020, “only several months before” April 25, 2020, when OPM notif ied her of the overpayment. ID at 7-8. The administrative judge reasoned that the appellant “had no control over the fact that, as a result of SSA’s decision to award her benefits retroactive to January 1, 2018, she had received two full years of FERS disability retirement overpayments that occurred between January 1, 2018, and December 31, 2019.”3 ID at 8. ¶5 In determining fault, pertinent co nsiderations generally include the following : (1) whether payment resulted from any statement the appellant should have known to be incorrect; (2) whether payment resulted from any failure on her part to disclose material facts in her possession that she should have known to be material; and (3) whether she accepted a payment that she knew or shoul d have known to be erroneous. Knox , 107 M.S.P.R. 353 , ¶ 6; 5 C.F.R. § 845.302 (a). The recipient of an o verpayment is deemed to be without fault if the individual “performed no act of commission or omission whic h resulted i n the overpayment.” 5 C.F.R. § 845.302 . OPM guidelines clarify that an individual is held to be without fault, even if she knew or should have known that the payment 3 We find the administrative judge’s characterization of the appellant having received “two full years of FERS disability retirement overpayments that occurred between January 1, 2018, and December 31, 2019 ” imprecise. ID at 8 (emphasis added). Indeed, al though the appellant was awarded SSA benefits retroactive to January 1, 2018 , the administrative judge found that substantial evidence established that she did not receive any money from SSA until January 2020 . See ID at 7-8. 4 was erroneous, if she contacted OPM within 60 days of the receipt of an overpayment to question the correctness of the payment. Policy Guidelines on the Di sposition of Overpayments under the Civil Service Retirement System and Federal Employees’ Retirement System (OPM Policy Guidelines), § I.B.6 (1995) (located at IAF, Tab 12 at 90). Here, the appellant never notified OPM of the overpayment . Instead, appro ximately 4 months (i.e., more than 60 days) after the appellant was awarded SSA benefits , OPM independently learned of the same. IAF, Tab 12 at 36. Thus, applying the correct legal standard, the appellant has so far failed to show that she was without fault in creating the overpayment . See Ewing v. Office of Personnel Management , 100 M.S.P.R. 224 , ¶ 5 (2005) (concluding that the a ppellant was at fault regarding an overpayment when he failed to follow the directions provided in OPM’s notification); cf. Boyd v. Office of Personnel Management , 851 F.3d 1309 , 1313 (Fed. Cir. 2017) (explaining that an appellant who promptly notifies OPM of an overpayment is categorica lly deemed to be “without fault ”). ¶6 However , our inquiry does not end here. To this end, the appellant argued before the administrative judge that, at the time she was approved for disability retirement under FERS, she was undergoing intense psychiatric treatment that prevented her from understanding the paperwork she had received from OPM ; in other words, the appellant contended that her mental condition caused her to accept an erroneous payment .4 IAF, Tab 1 at 5 ; see 5 C.F.R. § 845.302 (b) (stating that an individual’s m ental condition may mitigate against finding fault if it contributed to the appellant’s acceptance of an erroneous payment). Because resolving the factual question of whether the appellant ’s mental condition rendered her incapable of knowing or suspecting that she had received an overpayment may require credibility determinations that are best made first by the administrative judge, we remand the matter for further adjudication. 4 Although the administrativ e judge acknowledged this argument , ID at 4, he did not consider it in his analysis of fault , ID at 7 -8. 5 The administrative judge applied an incorrect legal standard in determining whether recovery would be against equity and good conscience. ¶7 The administrative judge concluded that recovery of the overpayment would be against equity and good conscience because it would create a substantial financial hardship for the appellant. ID at 8-17. In so concluding, he reasoned that the appellant was not required to set aside the overpayment because her January 2020 award of SSA benefits was retroactive and, therefore, she “was not aware that she was receiving an overpayment until nearly all of the overpayment had already occurred.”5 ID at 8-9. ¶8 Recovery of an overpayment is against e quity and good conscience if an appellant can establish the following : (1) recovery would ca use her financial hardship; (2) she relinquished a valuable right or changed positions for the worse because of the overpayment; or (3) recovery would be unconsci onable under the circumstances.6 Markanich v. Office of Personnel Management , 104 M.S.P.R. 323, ¶ 14 (2006); 5 C.F.R. § 845.303 . In assessing these factors , the Board has found that Federal annuitants who know or suspect that they are receiving overpayments are expected to set aside the amount overpaid pending recoupment and that in the absen ce of exceptional circumstances7—which do not include financial hardship —recovery in these cases is not against equity and good conscie nce. Knox , 107 M.S.P.R. 353 , ¶ 8. 5 Again, the administrative judge’s phrasing is imprecise. As stated, although the appellant was awarded SSA benefits retroactive to January 1, 20 18, the administrative judge found that substantial evidence established that she did not receive any monetary benefits from SSA until January 2020 . See ID at 7-8. 6 We discern no basis to disturb the administrative judge’s conclusions that the appellant failed to show either (1) that she relinquished a valuable right or changed positions for the worse because of the overpayment or (2) that recovery would be unconsci onable under the circumstances . ID at 9-10. Thus, the dipositive issue for purposes of determining whether recovery would be against equity and good conscience is whether recovery of the overpayment would cause the appellant financial hardship. 7 OPM Policy Guidelines explain that “[ e]xceptional circumstances would involve extremely egregious errors or delays by OPM —e.g., a failure to issue a written decision within 4 years of a debtor’s request for waiver.” IAF, Tab 12 at 93. 6 ¶9 Here, it is unclear why the administrative judge concluded that the retroactive nature of the appellant’s SSA be nefits rendered the set -aside rule inapplicable to her ; indeed, the Board has previously found that the rule applies in such circumstances . E.g., Gulan v. Office of Personnel Management , 86 M.S.P.R. 16 , ¶¶ 3-4, 9 (2000). Thus, applying the correct standard, we would agree with OPM’s contention that the appellant should have set aside any disbursement from SSA in order to repay OPM for the corresponding reductions that should have been taken from her disability retirement benefits. IAF, Tab 12 at 14, 66. However , as stated, the appellant argued that her mental conditions precluded her from understanding correspondence from OPM . IAF, Tab 1 at 5. Accordingly, on remand, the administrative judge shall determine whether the appellant’s mental conditions precluded her from knowing or suspecting that she was receiving an overpaym ent and, therefore, whether the set -aside rule should apply to her. See Zucker v. Office of Personnel Management , 114 M.S.P.R. 288 , ¶¶ 8-10 (2010) (remanding an overpayment appeal for further adjudication regarding the set -aside rule when the administrative judge failed to consider the appellant’s claim that his deteriorating mental conditions led him to erroneously believe that he h ad not received an overpayment) . On remand, the administrative judge shall further develop the record regarding the appellant’s finances . ¶10 As stated, t he administrative judge concluded that the appellant showed by substantial evidence that recovery of the overpayment would create a financia l hardship for her. ID at 10. Although the administrative judge found that the appellant’s monthly living expenses exceeded her monthly income, ID at 15 -16, he also acknowledged that, at the time she filed her Board ap peal, she had “a substantial amount of personal savings,” i.e., approximately $52,000.00 as of October 2021 , ID at 16; IAF, Tab 24 at 5. The administrative judge expressed 7 uncertainty as to the source of some these savings,8 a large portion of which stemmed from recent deposits. ID at 12; IAF, Tab 24 at 10, Tab 25 at 5, Tab 26 at 6. To this end, the administrative judge acknowledged that the appellant had testified that some of these deposits reflected her sale of a diamond ring; however, he found it “largely improbabl e that she was able to generate nearly $20,000.00 from the sa le of diamonds from a single ring.” ID at 12. ¶11 Financial hardship may be deemed to exist when the appellant “needs substantially all of [] her curren t income and liquid assets to meet current and ordinary li ving expenses and liabilities.” 5 C.F.R. § 845.304 . However, w hen information submitted by the appellant is incomplete, the adm inistrative judge should request additional information so that he can make a reasoned determination on the question of financial hardship. Zelenka v. Office of Personnel Management , 107 M.S.P.R. 522 , ¶ 15 (2007). ¶12 Here, we find the information concerning the appellant’s financial status to be incomplete; accordingly, we vacate the administrative judge’s conclusion that the appella nt showed by substantial evidence that recovery of the overpayment would create a financial hardship for her. O n remand, the administrative judge shall further develop the record regarding the appellant’s finances and provide the appellant an opportunity to submit an updated Financial Resource s Questionnaire (FRQ) .9 See Zucker , 114 M.S.P.R. 288 , ¶ 9 (instructing the adm inistrative judge 8 The appellant indicated on a July 7, 2021 Financial Res ources Questionnaire that she had $39,000.00 i n savings. IAF, Tab 12 at 17 . Banking statements that she provided indicated that, as of September 2021, she had over $54,000.00 in savings. IAF, Tab 24 at 9. The appellant also seemingly paid off a $7,528. 32 car loan during the pendency of her appeal before the administrative judge. IAF, Tab 12 at 17, Tab 24 at 4. 9 To the extent the administrative judge concludes on remand that the appellant is not entitled to a waiver of the overpayment, this additiona l evidence will be relevant for purposes of the repayment schedule. Indeed, even if an appellant is not entitled to a waiver of recovery of the overpayment, she is e ntitled to an adjustment of OPM’ s recovery schedule if she is able to show that recovery u nder that schedule would cause her a financial hardship. Malone v. Office of Personnel Management , 113 M.S.P.R. 104, ¶ 4 (2010 ); 5 C.F.R. § 845.301 . 8 to provide the appellant an opportunity to submit an updated FRQ when remanding an overpayment appeal) . ¶13 Accordingly, we remand this appeal to the Western Regional Office for further adjudication. On remand, the administrative judge sha ll apply the legal standards set forth above , further develop the record as described , and, if necessary, hold a supplemental hearing. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s c onclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests ). ORDER ¶14 For the reasons discussed ab ove, we remand this case to the Western Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CORDOVA_CHARA_L_SF_0845_21_0545_I_1_REMAND_ORDER_2003039.pdf	2023-02-15	null	SF-0845	NP
3,536	https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_4324_18_0042_I_1_REMAND_ORDER_2003050.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CYRIL DAVID DANIEL O RAM, JR., Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC-4324 -18-0042 -I-1 DATE: February 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se. Jana Pariser and Jane Brittan , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. § § 4301 -4335) . For the reasons discussed below, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117(c). 2 GRANT the appellant ’s petition for review , VACATE the initial decision, and REMAND the case to the Washington Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The agency posted an announcement for GS -12 and GS -13 Information Technology ( IT) Specialist positions in multiple locations, which were open during the period from August 4-11, 2017. Initial Appeal File ( IAF), Tab 6 at 29-42. The announcement identified the appointment type as “Temporar y – Temporary NTE June 30, 2020, ” and stated that it was open to “[c]urrent or former competitive service employees, including: Merit promotion; Career Transition (CTAP, ICTAP, RPL); Transfer. ” Id. at 29, 32. The “Who May Apply ” section of the announcement also stated that the positions were open to applicants who were eligible for “re-employment as a Federal annuitant; [] (ICTAP) elig ible in the commuting area; Persons eligible under the Veterans Employment Opportunities Act of 1998 (VEOA). ” Id. at 34. The appellant applied for the position during the open period and indicated on his application that he was entitled to veterans ’ preference. Id. at 53, 57, 68 -70. ¶3 On August 23, 2017, the agency sent the appellant separate emails about his GS-12 and GS -13 applications informing him that he was ineligible for consideration for the positions due to an “administrative error. ” Id. at 49-50. Elaborating, the emails stated , “VEOA mandates that eligible veterans be given career or career conditional appointments; temporary or term appointments cannot be offered, ” and noted that the positions to which the appellant had applied were temporary or term appointments . Id. ¶4 The appellant emailed the agency ’s human resources office requesting that the agency “reconsider both applications additionally competitively and noncompetitively as a current federal employee transfer, ” but he did not receive a response. Id. at 46. Subsequently, the appellant filed a VEOA complaint with the 3 Department of Labor (DOL). Id. at 44. After exhausting his administrative remedies for his VEOA appeal with DOL, id. at 24, the appellant filed a Board appea l in which he argued that the agency violated his veterans ’ preference right s by failing to consider his application for the temporary/term IT Specialist position, which the administrative judge docketed as separate appeals under VEOA and USERRA.2 IAF, Tab 1; see Oram v. Department of Homeland Security , MSPB Docket No. DC-3330 -18-0041 -I-1, Appeal File (0041 AF), Tab 1. The administrative judge docketed the VEOA appeal as MSPB Docket No. DC-3330 -18-0041 -I-1, and the instant USERRA appeal as MSPB Docket No. DC-4324 -18-0042 -I-1. ¶5 The administrative judge issued an order finding Board jurisdiction over the appellant ’s claim of military -status discrimination under USERRA and setting a joint hearing on the appellant ’s VEOA and US ERRA appeals. IAF, Tab 13 at 4-7. After the appellant failed to connect to the conference call on the day of the hearing, the administrative judge held the hearing with only the agency and its witness and closed the record at the end of the hearing. IAF, Tab 32, Hearing Compact Dis c (HCD). The administrat ive judge subsequently issued an initial decision on the USERRA claim holding that the appellant failed to submit any direct or circumstantial evidence demonstrating that his prior military status was a motivating factor in the age ncy’s decision not to select him for either of the 2 The appellant did not make any allegations related to USERRA in his complaint to DOL and has not alleged that he has exhausted his administrative remedies with DOL concerning his USERRA complaint. Cf. Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 12 (2007) (noting that wh en an appellant files a USERRA complaint with DOL before filing an appeal with the Board, he mus t exhaust his administrative remedies with DOL prior to submitting his USERRA complaint to the Board). Unlike an appeal brought under VEOA, there is no requirement that an employee exhaust his remedies with DOL before filing a USERRA appeal with the Board . Id. 4 vacancies at issue.3 IAF, Tab 33, Initial Decision (ID) at 6; see Sheehan v. Department of the Navy , 240 F.3d 1009 , 1014 (Fed. Cir. 2001). Consequently, the administrative judge denied the appellant ’s request for corrective action on his USERRA d iscrimination claim. ID at 7. ¶6 The appellant has filed a petition for review and a supplement to his petition for review. Petition for Review (PFR) File, Tabs 1-2. The agency has filed a response in opposition to the petition for review, and the appellant has not filed a reply . PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶7 On review, the appellant challenges a number of the administrative judge ’s rulings denying his discovery -related requests, asserting that the administrative judge “appeared to subject [him] to procedures not consistent with requirements. ”4 PFR File, Tab 1 at 5-6. However, the appellant does not specifically challenge the administrative judge ’s findings concerning his USERRA claim o r even refer to his USERRA claim in any of his filings on review. ¶8 Regarding the appellant ’s claim that the administrative ju dge’s rulings denying his discovery -related requests constituted an abuse of discretion, there is no merit to the appellant ’s claim . Id. The appel lant appears to be referring to an order the administrative judge issued denying his request that t he admini strative judge certify a discovery ruling for interlocutory appeal to the Board. IAF, Tab 21 at 1. The disputed discovery ruling the appellant sought to certify was the denial of the appellant ’s motion to compel as untimely . Id. 3 The administrative judge also issued a separate initial decision on the VEOA claim. 0041 AF, Tab 37. A petition for review has been filed in that case and is being separately adjudicated. 4 The appellant also alleges error in the administrat ive judge ’s decisions denying his request for recusal and his motion to quash, but those claims appear related to his separately docketed VEOA appeal, so we have not addressed them here. 0041 AF, Tabs 25-26, 28. 5 ¶9 The Board ’s regulations provide for certification of a ruli ng for interlocutory review when (a) the ruling involves an important question of law or policy about which there is substantial g round for difference of opinion; and (b) an immediate ruling will materially ad vance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public. 5 C.F.R. § 1201.92 . Based on our review of the record, the a ppellant ’s request does not meet the criteria for certification. Nothing about the discovery dispute at issue here involved an impo rtant question of law or policy that required an immediate resolution such that certification was necessary. See id. ¶10 Regarding the substance of the appellant ’s discovery -related challenges, we similarly find no error. As the administrative judge noted in his ruling on the matter, although the appellant informed the agency that he intended to file a motion to compel disc overy responses on December 20, 2017, he did not actually file the motion until January 11, 2018 —well after the 10 -day period for doing so had elapsed —and, therefore , his motion was untimely. IAF, Tab 19 at 2-3; Tab 20 at 4, 11 . Conversely, the agency fi led its motion to compel within the proscribed timelines after the appellant made clear that he refused to engage in the discovery process. IAF, Tab 19 at 3. ¶11 To the extent the appellant is suggesting that the administrative judge exhibited bias by denying his discovery -related requests, it is well established that conclusory claim s of bias that do not involve extrajudicial conduct do not overcome the presumption of h onesty and integrity that accompanies administrative adjudicators. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 41 1, ¶ 5 (2010). The appellant ’s conclusory assertions here, unsupported by any objective evidence, do not meet this standard . See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605 , ¶ 18 (2013) (explaining that there is a presumption of honesty and integrity on the part of administrative judges that only can be overcome by a substantial showing of personal bias and that the Board will not infer bias based on an administrative judge ’s case -related rulings) ; 6 Caracciolo 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) , overruled on other grounds by Brookins v. Department of the Interior , 2023 MSPB 3 . The administrative judge erred by holding the hearing in the appellant ’s absence. ¶12 On review, the appellant asserts for the first time that he had “technical difficulties ” that prevented him from participating in the video hearing, that he informed the administrative judge of the difficulties , and that he was prejudiced by the administrative judge ’s decision to hold the hearing in his absen ce. PFR File, Tab 1 at 5-6. In a status conference summary order dated January 12, 2018, the administrative judge scheduled the prehearing conference for February 14, 2018 , and the hearing for February 20, 2018. IAF, Tab 19 at 1-2. In a January 30, 2018 order denying the appellant ’s discovery -related motion , the administrative judge reiterated that the previously scheduled telephonic prehearing conference remained scheduled for February 14, 2018. 0041 AF, Tab 29 at 1. Both the agency and the appellant submitt ed their prehearing submissions on February 12, 2018, IAF, Tabs 28-29, and both parties were present on the prehearing conference call 2 days later , on February 14, 2018, IAF, Tab 30 at 1. ¶13 During the prehearing conference, the administrative judge discus sed logistics for the appellant ’s participation in the hearing via vid eo conference using GoToMeeting and directed the parties to attend a test call the following day, February 15, 2018. IAF, Tab 31 at 1. The appellant failed to appear for the test call on February 15, 2018, but submit ted a filing 30 minutes before the scheduled time for the test call in which he addressed the agency ’s prehearing submissions. Id. at 2. The administrative judge issued a memorandum documenting the appellant ’s absence ; stating that the February 20, 2018 hear ing would continue as scheduled ; and apprising the appellant that if he failed to appear, the hearing would continue in his absence and the record would close 7 upon completion of the hearing. Id. In the order, the a dministrative judge also instructed the appellant to contact him on the day of the hearing if he encountered any technical difficulties and provided the appellant with a telephone number . Id. ¶14 The scheduled hearing took place starting at 7: 10 a.m. on Feb ruary 20, 2018. HCD; ID at 4. Agency counsel and the agency ’s sole approved witness appeared before the administrative judge in person at the Board ’s Washington Regional Office, but the appellant failed to join the GoToMeeting conference at any point after the scheduled start of the hearing. HCD; ID at 4-5. The hearing concluded at 7:47 a.m. HCD; ID at 5. The appellant alleges, for the first time on review, that he “had substantial technical difficulties attending the hearing which he communicated to the Board,” although no such communication was documented in the hearing record, and the appellant has not pr ovided any evidence of any such communication. PFR File, Tab 1 at 6. ¶15 An appellant who establishes jurisdiction over a USERRA appeal has an unconditional right to a hearing if he requests one. Kirkendall v. Department of the Army , 479 F.3d 830 , 844 -46 (Fed. Cir. 2007) . Nevertheless, as the Federal Circuit has noted of the right to a hearing , “if the employee forfeits the right which Congress co nferred, he must forego the benefits .” Callahan v. Department of the Navy , 748 F.2d 1556 , 1559 (Fed. Cir. 1984) . To strike a balance between these considerations, MSPB’s Administrative Judges ’ (AJ) Handbook describ es what an administrative judge should do in a circumstance when an appellant fails to appear at a scheduled hearing : If the appellant and the appellant ’s designated representative (if any) fail to appear for the scheduled heari ng, the hearing cannot proceed. The AJ should try to call the appellant, and if unsuccessful in making contact, wait a reasonable time before cancelling the hearing in case the appellant is merely tardy. If neither the appellant nor the appellant ’s representative appears, the AJ must issue a show cause order that requires the appellant to show good cause for his or her absence. The AJ must then follow up with a second order either rescheduling the hearing if the appellant establishes good cause, or setting the date for the close of the record if the appellant fails to 8 respond to the order or if the response fails to show good cause. In the latter instance, the appeal must be adjudicated on the ba sis of the written record only. See Callahan v. Department of the Navy , 748 F.2d 1556 (Fed. Cir. 1984). Merit System s Protection Board, Judges ’ Handbook, chapter 4 , § 13(a).5 ¶16 Here , the record does not reflect that the administrative judge atte mpted to contact the appellant and then cancel the hearing after waiting a reasonable amount of time. The administrative judge also did not issue a show cause order providing the appellant with an opportunity to demonst rate good cause for his absence, and h e did not reschedule the hearing or, alternatively, cancel the hearing entirely and adjudicate the cas e based on the written record. ¶17 Accordingly, we find th at the administrative judge erred by holding the hearing in the appellant ’s absence . Consequently, we vacate the initial decision and remand the appeal to the Washington Regional Office for a new hearing on the merits of the appellant ’s USERRA claim and t he issuance of a new initial decision on the merits of that claim. 5 The Board has held that “the [AJ] Handbook is not mandatory and failure to apply its provisions does not establish adjudicatory error.” Gregory v. Department of the Army , 114 M.S.P.R. 607 , ¶ 22 (2010). Similarly, Koehler v. Department of the Air Force , 99 M.S.P.R. 82 , ¶ 13 n.4 (2005), provides that the AJ Handbook only provides “guidance,” is not an independent source of authority for administrative judges, and “creates no greater substantive rights for appellants than that to which they are entitled by law, rule, or regulation, as developed through the Board’s own current case law and that of our reviewing court . . . .” As noted above, this particular procedure in the AJ Handbook was adopted to follow the Federal Circuit’s guidance in Callahan . 9 ORDER ¶18 For the reasons discussed above, we remand this case to the Washington Regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ORAM_CYRIL_DAVID_DANIEL_DC_4324_18_0042_I_1_REMAND_ORDER_2003050.pdf	2023-02-15	null	DC-4324	NP
3,537	https://www.mspb.gov/decisions/nonprecedential/SPIVEY_ANNETTE_E_CH_0752_16_0318_I_1_FINAL_ORDER_2003086.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANNETTE E. SPIVEY, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER CH-0752 -16-0318 -I-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Debra J. Gipson , Euclid, Ohio, for the appellant. Joshua A. Dombrow , Esquire, and Pamela D. Langston -Cox, Esquire , Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Member Leavitt issues a separate dissenting opinion. FINAL ORDER ¶1 The agency has filed a petition for revie w of the initial decision, which mitigated the appellant’s removal to a 10 -day suspension . Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneou s application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error af fected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The agency proposed the appell ant’s removal from her position as a GS-0962 -08 Contact Representative based upon two charges. Initial Appeal File (IAF), Tab 4 at 87-91. First, the agency charged that the appellant willfully failed to timely file her 2012 Federal income tax return in v iolation of section 1203 of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA) (codified at 26 U.S.C. § 7804 note (Termination of employee for misconduct )) without reasonable cause for her noncompliance and that, even if she did not willfully fail to timely file her return, she still did not file it by the due date , as required by 5 C.F.R. § 2635.809 . IAF, Tab 4 at 87-88; see Pub. L. No. 105 -206, 112 Stat. 685, 720 -22. Second, the agency charged that the appellant failed to properly file her 2013 Federal income tax return because, as a result of multiple math errors, she incurred additional taxes that were not satisfied. IAF, Tab 4 at 87 -88. The appellant orally responded to the proposal notice through her union representative. Id. at 44 -63. The agen cy’s Section 1203 3 Review Board —which makes recommendations to the agency’s Commissioner, the only per son within the agency who can mitigate the removal penalty for miscondu ct under section 1203 of the RRA —did not recommend mitigating the removal penalty. Id. at 40; see 26 U.S.C. § 7804 note (Ter mination of employee for misconduct ). After receiving the Review Board ’s decision , the agency imposed the appella nt’s removal. IAF, Tab 4 at 35-39. ¶3 The appellant then filed the instant appeal. IAF, Tab 1. After holding the appellant’s requested hearing , the administrative judge issued an initial decision sustaining only the second charge and mitigating the penalty to a 1 0-day suspension. IAF, Tab 25, Initial Decision (ID). The agency filed a petition for review in which it asserts that the administrative judge erred in failing to sustain the first charge and in mitigating the penalty. Petition for Review (PFR) File, Tab 1.2 The appellant responded in opposition to the petition and asserts that she is entitled to back pay and attorney fees. PFR File, Tabs 3 -4. The agency has replied.3 PFR File, Tab 5. 2 On review, the parties do not challenge the administrative judge’s decision to sustain the se cond charge, find nexus, and determine that the appellant did not present sufficient evidence or argument to support her affirmative defenses . W e find no reason for disturbing the initial decision on these issues. ID at 7 -11; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the administrative judge ’s findings when she considered the evide nce as a whole, drew appropriate inferences, and made reasoned conclusions) . 3 The agency filed a motion to strike the appellant’s submission regarding its failure to comply with the administrative judge’s interim relief order, and the appellant responded in opposition to the agency’s motion. PFR File, Tabs 6 -8. We deny the agency’s motion and have considered the appellant’s submission as a pleading under 5 C.F.R. § 1201.116 challenging the agency’s compliance with the interim relief order . However, we find that the a ppellant’s petition does not meet the criteria for review in any event, and the issuance of our final decision renders moot any dispute concerning the agency ’s compliance w ith the interim relief order. Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 8 (2015). If the appe llant believes the agency is not in compliance with the Board ’s final order, or if she seeks an award of attorney fees as the prevailing party in this appeal, she may file a petition for enforcement and/or a request for attorney fees in accordance with the instructions provided below. 4 DISCUSSION OF ARGUME NTS ON REVIEW We affirm the administrative judge’s decision not to sustain the first charge. ¶4 On review, the agency challenges the administrative judge’s decision not to sustain the first charge, which, under the first alternative, was based upon the appellant’s alleged willful failure to file her 2012 tax return in violation of section 1203(b)(8) of the RRA without reasona ble cause for the failure. PFR File, Tab 1 at 9 -22; see 26 U.S.C. § 7804 note (Termination of employee for misconduct ). The agency asserts that, contrary to the administrative judge’s findings, the appellant never mailed the 2012 return, her fai lure to file the return was willful, and there was no reasonable cause for her failure to file the return. PFR File, Tab 1 at 9-16. The agency also asserts that the ad ministrative judge demonstrated apparent confusion regarding her reasonable cause deter mination. Id. at 9-11. ¶5 The administrative judge found that the appellant timely filed her 2012 tax return and that the agency thus failed to prove the first charge, as either a willful violation under section 1203(b)(8) or a violation of 5 C.F.R. § 2635.809 . ID at 7. She considered the parties ’ agreement that, because the appellant obtained an extension of time to file her 2012 tax return , her return was due on October 15, 2013, and that the return was never actually received. ID at 4. She also noted the appellant’s testimony that she filed the return in early October 2013 by regular mail because a family situation made it difficult for her to send the return by certi fied mail or file it at the agency’s office, as she usually did. ID at 5; PFR File, Tab 1, Hearing Transcript ( HT)4 at 82-83 (testimony of the appellant). Additionally, the administrative judge considered the appellant’s testimony that she did not become aware until November 2014 that the agency did not receive the 2012 tax return when her acting manager notified her of this fact. ID at 5; HT at 89 -90 (testimony of the appellant). The administrative judge considered the 4 The court reporter’s transcript submitted with the agency’s petition for review is properly citable as the official hearing record. See 5 C.F.R. § 1201.53 . 5 agency’s arguments that the appellant acted willfully because she twice disregarded notices informing her that the agency had not receiv ed her 2012 tax return, which notices were sent to the appellant’s post office box in September and October 2014, and be cause she did not file a substitute return until more than 5 months after her manager notified her that the agency did not receive the return. ID at 5. However, she also considered the appellant’s response that she did not receive the agency’s notices be cause she did not access her post office box, which was located at a facility with limited hours, that she delayed filing her return after her manager notified her about the agency’s nonreceipt because, due to certain financial issues, she could not locate a draft copy she had originally used to file the return, and that she experienced health issues and multiple family issues during the time period in question. ID at 5-6; HT at 89 -93 (testimony of the appellant). ¶6 The administrative judge determined that t he appellant timely filed her 2012 tax return finding the appellant credible, based in part on her demeanor. ID at 6-7. She found that the appellant was the only one who was able to observe whether or not she had filed her return in the manner described and her testimony on this was not inherently improbable because it is not unusual for items to get lost in the mail. Id. The administrative judge further stated that the appellant’s demeanor indicated that she was truthful, she was earnest and unwavering in her description of events, her voice was confident and she testified without hesitation, and her facial expression appeared honest without any sign of guile or deception. ID at 7. ¶7 The Board must defer to an administrative judge’s credibilit y determi nations when she relies “expressly or by necessary implication” on a witness’s demeanor at the hearing and will also defer to an administrative judge’s findings that are “necessarily intertwined” with issues of credibility and an analysis of a witness’s de meanor. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016). The Board “is not free to overturn an 6 administrati ve judge’s demeanor -based credibility findings merely because it disagrees with those findings.” Haebe v. Department of Justice , 288 F.3d 1288 , 1299 (Fed. Cir. 2002). Rather, t he Board may overturn credibility -based determinations only when it has “sufficiently sound” reasons for doing so. Id. at 1301 .5 As a result of the “sufficiently sound” requirement for overturning an administrative judge ’s credibility determinations, the Board has established for administrative judges guidance relating to credibility determinations . See Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) ; see also Haebe , 288 F.3d at 1301 . Even though the agency disagrees with the a dministrative judge’s credibility findings and weighing of the evidence, the initial decision reflects that the administrative judge cited to and applied the Hillen factors. In sum, we find that the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions. Consequently, we discern no reason to reweigh the evidence or substitute the Board ’s own judgment on credibility issues. See Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). Accordingly, we agree with the administrative judge that the agency failed to prove the first charge based upon the appellant’s alleged willful fail ure to file her 2012 tax return in violation of section 1203(b)(8) of the RRA. ¶8 The agency also asserts that , even if the first charge is not sustained based upon the appellant’s willful failure to file her return , it should be sustained as a violation o f 5 C.F.R. § 2635.809 because of the following: (1) the agency did not receive the appellant’s 2012 tax return until May 2015; (2) she was not c omplying with her duty as an agency employee u ntil it was received; (3) she did not actually file the return on time ; and (4) the return was not complete when it was 5 The court in Haebe explained that the deference requirement stems from a fundamental notion o f fairness as expressed by the c ourt in Jackson v. Veterans Administration , 768 F.2d 1325 , 1331 (Fed. Cir. 1985): “great deference must be granted to the trier of fact who has had the opportunity to observe the demeanor of the witnesses, whereas the reviewing body looks only at ‘cold records.’” 7 filed because she owed taxes for which she established an installment agreement. PFR File , Tab 1 at 23-25; IAF, Tab 4 at 26-30, 111, 113 -14. The agency points to 5 C.F.R. § 2635.809 , which states that Government e mployees are required to “satisfy in good faith their obligat ions as citizens, including all just financial obligations, especially those such as Federal, State, or local taxes that are imposed by law. ” Section 2635.809 defines “in good faith” as “ an honest intention to fulfill any just financial obligation in a ti mely manner. ” ¶9 As discussed above, we defer to the administrative judge’s finding that the appellant filed her return via regular mail. ID at 6 -7. Thus, the agency’s argument that the appellant did not actually file the tax return does not provide a basis for sustaining the charge as a violation of 5 C.F.R. § 2635.809 . ¶10 Further, we find that the charge cannot be sustained based upon the agency’s failure to receive the return or based upon the appellant’s failure to submit a complete return with an installment agreement because these claims were not included in the proposal notice. IAF, Tab 4 at 87. Procedural due process requires an agency to afford an emp loyee notice of the charges against her and of the agency ’s supporting evidence and to give that employee an opportunity to respond before effecting h er removal. 5 U.S.C. § 7513 (b)(1); see Stone v . Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1375 -76 (Fed. Cir. 1999). The specific reasons for a proposed adverse action against an employee must be set forth in sufficient detail to allow the employee to make an informed reply. Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 5 (2009) . In determining if an employee has received adequate notice of a charge, the Board examines the employee ’s reply to see whether the employee defended against it. See Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶ 22 (2015). ¶11 The proposal notice stated that, even if the appellant’s failure to file her 2012 return was not willful, she still did not timely file her tax return by the due date. IAF, Tab 4 at 87. The proposal letter also stated that, as of April 8, 2015, 8 the appellant had not filed a tax return for tax year 2012. Id. It did not mention the payment or nonpayment of the appellant’s taxes and, although it indicate d that the agency did not receive the 2 012 return, it did not charge her with f ailing to file the return such that it was received by a certain date. Id. In her oral reply, the appellant described her health and family issues and stated that these constituted reasonable cause and mitigating circumstances for her late filing of the 2012 tax return. Id. at 59. She did not discuss the agency’s receipt of the 2012 tax return or payment of her 2012 taxes. Id. at 50-61. ¶12 Thus, neither the proposal nor the appellant’s reply demonstrate s that she received notice of the charge , as construed by the agency on review . Consequently , the charge cannot be sustained on these alternative bases now asserted by the agency. See Thome , 122 M.S.P.R. 315, ¶ 22; see also Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272 , ¶ 14 (2001) (finding that the Board will not sustain an agency action on the basis of a charge that could have been brought, but was not); Rackers v. Department of Justice , 79 M.S.P.R. 262, 272 (1998) (explaining that the Board adjudicates the charge as it is described in the agency’s proposal and decision notices), aff’d , 194 F.3d 1336 (Fed. Cir. 1999) (Table) . Accordingly, we agree with the administrative judge’s decision not to sustain the first charge. We discern no error in the administrative judge’s decision to mitigate the penalty to a 10 -day suspension. ¶13 When, as here, not all of the agency ’s charges are sustained, the Board will consider carefully whether the sustained charges warra nt the penalty imposed by the agency. Blank v. Department of Army , 85 M.S.P.R. 443 , ¶ 9 (2000) , aff’d , 247 F.3d 1225 (Fed. Cir. 2001 ). In doing so, the Board must first examine whether the agency has indicated either in its final decision or during proceedings before the Board that it desires a lesser penalty in the event not al l of the charges are sustained. LaChance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999). If the agency has not so indicated, the Board may presume that the agency desires the 9 maximum reasonable pen alty and must examine whether the agency -imposed penalty is within the ma ximum limits of reasonableness. Id. The court in LaChance explained that : [W]hen the Board mitigates to the maximum reasonable penalty under such circumstances, the Board ’s action appropriately presumes that it is acting in conformity with the agency ’s penalty choice, either because the agency explicitly has made clear its desire that the maximum reasonable penalty be imposed or implicitly has done so by virtue of its silence. Id. The Board is ultimately required to “independently balance the relevant Douglas factors with heightened sensitivity when reviewing agency penalties upon fewer charges th an those brought by the agency .” Id. at 1257 . ¶14 Here, the administrative judge review ed the testimonial and documentary evidence and found that the agency never stated that it desired that a lesser penalty be imposed if only one of the two charges was sustained. ID at 11. The administrative judge therefore reviewed the penalty determinat ion to determine whether removal was the maximum reasonable penalty for the single, sustained charge. Id. The administrative judge found that the deciding official did not give proper weight to certain significant mitigating circumstances surrounding the appellant’s misconduct and thus conducted her own penalty analysis . ID at 12-13. She based her finding on the d eciding official having given “neutral” as opposed to positive weight to an important mitigating factor under the circumstances . Id.; HT at 46 (testimony of the deciding official ). ¶15 We must defer to the administrative judge’s finding s on these mitigating factors because, as explained below, the y are “necessarily intertwined” with the administrative judge’s credibility findings . See Purif oy, 838 F.3d at 1373 (finding that the administrative judge’s findings on the appellant’s “propensity for rehabilitation are necessarily intertwined with issues of credibility and an analysis of his demeanor at trial, and they deserved deference from the B oard .”). Specifically, in failing to sustain the first charge, the administrative judge 10 considered the appellant’s testimony that “this was a chaotic time” in her life when she was “overcome by many misfortunes.” ID at 6. T he administrative judge also d iscussed the appellant’s many difficult personal and family issues in further detail. Id. Based upon the appellant’s demeanor, the administrative judge fully cred ited the appellant’s version of even ts. ID at 7. Further, in determining whether the decid ing official properly considered the mitigating factors, the administrative judge described the appellant’ s mental health issues, which arose out of these stressor s. ID at 12. Because the administrative judge credited the appellant’s version of events, she found that the deciding official should have considered the events as mitigating factors as opposed to weighing them merely as “neutral.” Id. We defer to this finding and th e administrative judge’s resulting conclusion that a 10-day suspension was the maximum reasonable penalty for the sustained charge . Id.; see LaChance , 178 F.3d at 1260 . ¶16 In determining the penalty, the administrative judge considered the following: the only sustained charge, the appellant’s improper filing of her 2013 tax return , while serious, was not nearly a s serious as the other charge that was not sustained ; the appellant’s position required her to advise other s about tax issues and thus she was expected to strive for accuracy in her own taxes; she previously received a 5 -day suspension in 2006 for having improperly filed her tax return; based upon her prior offense and periodic reminders from the agency, she was on notice that she should properly file her tax return; the fact that this was her second offense weighed against her potential for rehabilitation, but this was mitigated by her many difficult personal circumstances at the time ; the deciding official testified that the two charges did not diminish her confidence in the appellant ’s ability to accomplish her work ; and there was no notoriety of the offense. ID at 13 ; HT at 43-47 (testimony of the deciding official); IAF, Tab 4 at 36-37, 80-85, 113 -17, 218, 220 -30. The administrati ve judge also considered that a 10 -day suspension for an offense of improper but unintentional filing of a tax return was consistent with the agency’s penalty guide. ID at 13; IAF, Tab 4 11 at 130. Based upon our review of the record, we discern no error in this determination and find that the administrative judge appropriately weighed the Douglas factors . Accordingly, we affirm the administrative judge’s decision to mitigate the penalty to a 10 -day suspension. ORDER ¶17 We ORDER the agency to cancel the removal acti on and substitute it with a 10-day suspension without pay . See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agen cy 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 app ellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶19 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶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 initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not 12 fully carried out the Board ’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶21 For agencies whose payroll is administered by either the N ational Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set fort h above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the Unite d States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirement s, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG 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 f ile. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 13 Systems Protection Board does not provide legal advice on which option is most appropriate f or your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable 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 this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 14 http://www.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 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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, 15 and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your 7 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. 16 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 t o 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/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of al l amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, wor kers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave wi ll be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with cl ear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amou nt and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If emplo yee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be include d on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630. DISSENTING OPINION O F TRISTAN L . LEAVITT in Annette E . Spivey v . Department of the Treasury MSPB Docket No . CH-0752 -16-0318 -I-1 ¶1 For the reasons set forth below, I respectfully dissent fr om the majority opinion in this case . ¶2 The majority affirms the administrative judge’s decision not to sustain charge 1 und er which the agency claimed that the appellant willfully failed to timely file her 2012 tax return by the due date, in violation of section 1203 of the Internal Revenue Service Restructuring and Reform Act of 1998 without reasonable cause for her noncompli ance or, even if her actions were not willful, violated 5 C.F.R. § 2635.809 because her return was not timely filed . ¶3 It is undisputed the appellant was granted an extension , from April 15 to October 15, 2013, to file her 2012 tax return . Initial Appeal File ( IAF), Tab 4 at 27, 97, 101, Tab 20 at 6; Hearing Compact Disc ( HCD) (testimony of the appellant) . The appellant testified to her understanding that tax returns filed by the extend ed deadline must be received, not just postmarked, by the deadline . HCD (testimony of the appellant) . Preponderant evidence establishes the agency did not timely receive the appellant’s 2012 tax return . On September 12 and October 6, 2014, the agency se nt notices to the appellant’s address of record indicating she failed to file a tax return for 2012 . IAF, Tab 4 at 110 -11. During a meeting on November 19, 2014, the appellant’s supervisor informed her that her request for a filing extension for 2012 was received, but the actual return was not. Id. at 101. The appellant was instructed to file her return by December 3, 2014 . Id. Under charge 1 in its proposal notice dated April 16, 2015, the agency again informed the appellant that its records indicated she still had not filed a return as 2 of April 8, 2015 . Id. at 87-88. The agency did not receive the appellant’s 2012 tax return until May 1, 2015 . Id. at 26. ¶4 The majority defers to the administrative judge’s findings that the appellant credib ly testified she timely file d her 2012 tax return by October 15, 2013, and, therefore, the agency failed to prove charge 1 under either alternative . Specifically, the administrative judge noted the appellant’s testimony that she filed the return in early October 2013 by regular mail because her own health issues and family issues made it difficult for her to use certified mail; that she did not receive, or therefore act upon, the two notices the agency sent her informi ng her that her 2012 return had not be en received, because she did not access her post office box, which was located at another facility with limited hours; and that, due to financial issues that affected her ability to locate a draft copy of her original return, she did not file a substitute return until nearly 6 months after she had been notified that her original return had not been received . IAF, Tab 25, Initial Decision ( ID) at 5-6. The AJ found that no one other than the appellant could testify regarding whether she filed her return as she described; her explanation was not inherently improbable because items get lost in the mail; and, her demeanor indicated she was truthful . ID at 7. ¶5 The majority opinion correctly states that the Board must defer to an administrative judge’s credibil ity determinations when they are based on a witness’s demeanor, and that the Board will overturn such determinations only when it has sufficiently sound reasons to do so . See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed . Cir. 2002) . However, we diverge in that I believe there are sufficiently sound reasons in this appeal to overturn the administrative judge’s credibility finding s, notwithstanding her reliance on the appellant’s demeanor . As set forth in detail below, the appellant has made several inconsistent, inherently improbable assertions, which warrant finding her not credible . See Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) . 3 ¶6 Notes from the November 2014 meeting indicate the appellant told her supervisor she was “certain” her 2012 tax re turn “was mailed.” IAF, Tab 4 at 101. However, there is evidence that the appellant also made less absolute statements concerning the filing of her 2012 tax return. The November 2014 meeting notes indicate the appellant stated she “was not awa re that th e return for TY12 was not filed.” Id. at 101. And, a February 2015 Factfinding Memorandum indicates the appellant “stated that she thought she had filed.” Id. at 97. ¶7 In a signed statement made under penalty of perjury in June 2016 , the appellant asser ted she filed her 2012 t ax return “on or before October 15, 2013.” IAF, Tab 20 at 118.1 At the hearing, the appellant suggested she placed her 2012 tax return in a residential mailbox in early October before the deadline , so that it would reach the agenc y by the deadline . HCD (testimony of the appellant) . She testified that w hile she typically sends her returns by certified mail, she was unable to do so in October 2013 because she was the primary caregiver for her mother who could neither be left alone nor leave the home to go to the post office . Id. ¶8 The detailed explanation the appellant offered at hearing is not documented in the notes from the November 2014 meeting or the February 2015 Factfinding Memorandum . See IAF, Tab 4 at 97-101. The appellant also did not mention any of these details during her August 2015 oral reply . In fact, she admits she did not 1 The administrative judge stated in her prehearing conference summary that the agenc y withdrew its proposed Exhibit 10. IAF, Tab 21 at 6. The agency timely objected, stating : [T]he Agency understood that, whi le the Administrative Judge did not approve the tota lity of proposed Agency Exhibit 10, she did approve the document containing Appellant’s statement under penalty of perjury that she timely filed her 2012 Federal Income Tax return as t he Exhibit (page 118 of 141 in the electronically uploaded version of the Agency ’s Pre-hearing Submissions). IAF, Tab 22 at 2. The appellant did not respond to the agency’s objection . Accordingly, I find it appropriate to consider this document. 4 even allege during her oral reply that she timely filed her 2012 tax return . See HCD (testimony of the appellant) . To the contrar y, she2 argued her conduct did not violate section 1203(b)(8), but “Title 5 CFR Section 2635.809 is a more reasonable charge [for] her late filing.” Id. at 57, 60 . She further argued a lesser penalty, such as a suspension, was warranted because she “had mitigating circumstances” and “reasonable cause for her late filing of 2012.” Id. at 59, 60-61. She explained: Ms. Spivey’s 2012 return as a calendar year filer ha d an original due date of April 2013 . Her therapy began in December of 2012, prior to her 2012 tax return due date . It is reasonable to correlate the late filing [with] Ms . Spivey’s p eak of her major depression . Id. at 56, 66 . She stated December 2012 is when she “decided that this disease was evolving into something that she could no l onger deal with on her own,” which is why she sought therapy at that time.3 Id. at 53. ¶9 When confronted with this inconsistency at the hearing, the appellant asserted she believed her representative, in repeatedly referencing a “late filing,” was referring to her failure to file her return by the December 2014 deadline she discussed with her supervisor during the November 2014 meeting . HCD (testimony of the appellant) . She testified she believed this because she had already discussed the circumstances surrounding the October 2013 filing deadline 2 The appellant’s designated union representative made the oral reply on her behalf, but the appellant was present. HCD (testimony of the appellant). They were “permitted to consult with one another at any time during the proceeding.” IAF, Tab 4 at 40. At the conclusion of the oral reply, the appellant confirmed to the Oral Reply Officer that she had been provided with a full and fair opportunity to make the oral presentation. Id. at 46, 62 -63. The appellant did not make any substantive corrections to the transcript of the reply. Id. at 66. 3 A letter dated June 24, 2015, stated th e appellant could submit documentation regarding “any medical condition which you believe has contributed to the reason(s) for the proposed action.” IAF, Tab 4 at 70. The ap pellant submitted such evidence to Fede ral Occupational Health on July 10, 2015 . Id. at 61, 69-78. This lends further support to finding the appellant intended to establish a basis to mitigate the penalty for her misconduct of late filing. 5 with her supervisor during the November 2014 m eeting . Id. I find this testimony wholly unpersuasive and implausible . The appellant’s supervisor was neither the proposing nor the deciding o fficial, and the supervisor was not present during the oral reply . See IAF, Tab 4 at 39, 46, 91 . The Oral Rep ly Officer reiterated this information at the start of the oral reply, and the appellant indicated she had no questions about it . Id. at 49-50. I see no reason why the appellant would h ave reasonably believed she did not need to fully respond to the char ges against her during the oral reply simply because she had discussed part of the allegations with an uninvolved party months before . Indeed, the appellant’s representative indicated, at the outset of his remarks on the appellant’s behalf, his understand ing that charge 1 concerned, inter alia, the appellant’s “fail[ure] to file [her] 2012 Federal Income Tax Return by . . . the expiration date of a valid extension.” Id. at 50-51. Again, at no point did the appellant clarify that she had, in fact, timely filed her 2012 tax return before her valid extension expired . Instead, she argued a lesser penalty was warranted because the “late filing” was not willful, but rather, was due to her medical condition and other “unfortunate circumstances.” Id. at 57-61. ¶10 The appellant testified she “was under the impression” her return was timely received and did not learn otherwise until the November 2014 meeting with her supervisor . HCD (testimony of the appellant) . She testified, “I didn’t know the agency was trying to get in touch with me.” Id. However, the record reflects the appellant had a balance owed when she submitted her 2012 tax return in May 2015 . IAF, Tab 4 at 26-27, Tab 20 at 16. While I recognize this is not part of the charged misconduct, I find it relevant to the appellant’s credibility. Presumably, she would have been aware of this balance when she purportedly submitted her 2012 tax retur n for the first time in October 2013 . It is undisputed she did not establish a payment plan to address this balance until September 2015 . See IAF, Tab 4 at 28; Petition for Review ( PFR ) File, Tab 1 at 36-37 (testimony of Tax Compliance Branch employee). I find it implausible that the appellant 6 would have reasonably believed her return was timel y received when, according to her, she received no contact from the agency for more than a year thereafter, despite owing a balance she knew she had not paid . It also strains credulity that the appellant did not anticipate contact from the agency under these circumstances. ¶11 The appellant acknowledges she failed to comply with her supervisor’s November 2014 instructions to file her 2012 tax return by December 3, 2014 . HCD (testimony of the appellant) . The appellant testified she “usually” keeps her tax r eturns in a storage unit because she believes it to be “more secure” than keeping them in her home . Id. She testified she placed her 2012 tax return draft in storage after she mailed the final version. Id. At the hearing, the appellant’s designated rep resentative asked her, “When you were informed by your acting manager that your income tax return for 2012 hadn’t been filed, did you take any steps to go and search in the storage unit to go find the tax return?” Id. She responded that she “initially” t hought her 2012 return draft was in her home. Id. She thus believed she could easily recreate the return and meet the December 2014 deadline. Id. “And then, when [she] realized it wasn’t in the house, [she] couldn’t access the storage unit because when you don’t pay they put an extra lock on it until you become current.”4 Id. I find these claims difficult to reconcile with the appellant’s signed statement made under penalty of perjury, wherein she averred the “storage unit was sold in either April or May of 2014.” IAF, Tab 20 at 118. On the one hand, she claims she could not access the storage unit following the November 2014 meeting because she was locked out of it until she could pay her outstanding balance. On the other hand, she claims the stora ge unit had already been sold many months before she purportedly became aware in November 2014 that her 2012 tax return was never received. It is also unclear 4 The appellant testified she fell behind on her storage unit payments because she was in a leave without pay status from October 1 through December 2, 2013, while caring for her mother. HCD (testimony of the appellant). 7 how she could be so certain about having timely mailed her return, but then not recall that she placed the draft in storage, a step which she testified was her usual practice. ¶12 I would find the foregoing sufficient to overturn the administrative judge’s credibility determinations, see Haebe , 288 F.3d at 1301 , and to find the agency proved charge 1 because , at a minimum, the appellant failed to satisfy her just financial obligations as required under 5 C.F.R. § 2635.809 , by failing to timely file her 2012 tax return and continuing to delay in filing for many months after the agency brought the matter to her attention. As noted by the majority opinion, the parties do not challenge on review the administrative judge’s decision to sustain the second charge and to find nexus . I agree that there is no reason to disturb these findings . ¶13 Where the agency’s charges are sustaine d, the Board reviews the agency -imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion “within the tolerable limits of reasonableness.” Singletary v. Department of the Air Force , 94 M.S.P.R. 553 , ¶ 9 (2003), aff’d, 104 F. App’ x 155 (Fed . Cir. 2004); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) . As our reviewing court has held, “[i]t is well -established that the determination of the proper disciplinary action to be taken to promote the efficiency of the service is a matter peculiarly and necessarily within the discretion of the agency.” Parker v. U.S. Postal Service , 819 F.2d 1113 , 1116 (Fed . Cir. 1987) . Notably, the court stated that “deference is given to the agency’s judgment unless the penalty exceeds the range of permissible punishment specified by statute or regulation, or unless the penalty is ‘so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.’” Id. (quoting Villela v. Department of the Air Force , 727 F.2d 1574 , 2576 (Fed . Cir. 1984) ). As I noted in my dissent in Chin v. Department of Defense , 2022 MSPB 34 , it is clearly not the Board’s role to decide what penalty we would impose if we were the deciding officials . 8 ¶14 Here, the deciding official testified that she considered all the Douglas factors . PFR File, Tab 1 at 43-44. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibility, is the most important factor in assessing the reasonableness of a penalty. See, e.g. , Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 18. R egarding this factor, the deciding official testified IRS employees are held to a higher standard because “we are the tax collectors” and the agency must be confident that its employees are meeting their obligations regarding the filing and paying of taxes . PFR File, Tab 1 at 38. In her letter of decision, the deciding official s tated that among the duties of the appellant’s position is assisting taxpayers and responding to their inquiries, and that she was certified to answer such inquiries . IAF, Tab 1 at 10. The deciding official considered that this certification demonstrated the appellant had a clear understanding of when to file personal returns , and also that the appellant was well aware of the requirements of timely and proper filing of returns because the agency frequently reminds its employees of their tax obligations, t hrough annual training, team meetings, and receipt of a document, “Plain Talk about Ethics and Conduct.” Id.; PFR File, Tab 1 at 40. The deciding official also considered the appellant’s past 5 -day suspension in September 2006 for failing to properly fil e her tax return . PFR File, Tab 1 at 36. ¶15 The letter of decision, as supplemented by the deciding official’s hearing testimony, demonstrates that she properly considered the relevant factors and reasonably exercised her management discretion . Lopez v. D epartment of the Navy , 108 M.S.P.R. 384 , ¶ 22 (2008) . Under these circumstances, the agency’s penalty determination is entitled t o deference.5 While I am sympathetic to the appellant’s situation, I believe that removal was within of the tolerable limits of 5 To the extent that the deciding official erred in finding the appellant’s articulated mitigating circumstances neutral, see PFR File, Tab 1 at 44, I would nonetheless affirm her penalty determination based on her sound analysis of the foregoing factors. 9 reasonableness in this case, and that therefore the agency -imposed penalty shoul d not be disturbed . /s/ Tristan L. Leavitt Member	SPIVEY_ANNETTE_E_CH_0752_16_0318_I_1_FINAL_ORDER_2003086.pdf	2023-02-15	null	CH-0752	NP
3,538	https://www.mspb.gov/decisions/nonprecedential/COMBS_CRYSTAL_DC_0432_17_0536_I_1_FINAL_ORDER_2003096.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CRYSTAL COMBS, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC-0432 -17-0536 -I-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Andrew M. Szilagyi , Esquire, and John T. Koerner , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the agency’s removal action on due process grounds . On petiti on for review, the agency argues that the administrative judge erroneously concluded 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 that the appellant’s response to the proposed removal was timely filed and that the agency was required to consider it; the administrative judge erred by relying on the Federal Rules of Civil Procedure and the Board’s regulations as guidance in determining that the appellant’s response was timely filed; the administrative judge’ s conclusion imposes a procedural rule on agencies, requiring them to accept responses to proposed adverse actions in a manner that is not required by statute, regulation, or due pro cess considerations; and that even if the agency erred by refusing to consider the appellant ’s response, such error was harmless and did not violate the appellant’s due process rights . Generally, we grant petitions such as this one only in the following c ircumstances: 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 jud ge’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 arg ument 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 agree with the administrative judge’s conclusion that the appellant’s response to the agency’s proposed removal, filed on the first day after Government offices in the Washington D.C. area officially reopened for business following a shutdown du e to inclem ent weather, was timely filed, and so the agency’s failure to consider the response before issuing its decision to remove the appellant denied her constitutionally required minimum due process . See Initial Appeal File (IAF), Tab 61 , Initial Dec ision (ID) at 9; Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985) (noting that the due process clause of the Fifth Amendment to the Constitution requires that a tenured Federal employee be provided with an opportunity to present his side of the story) . 3 After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. 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). ORDER ¶3 We ORDER the agency to cancel the removal and to retroactively restore the appellant effective February 9, 2016. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. 2 The appellant has requested that the Board dismiss the agency’s petition for review for failu re to comply with the administrative judge’s interim relief order, asserting that as of the date of the petition for review, the agency had not returned the appellant to duty or paid her the required back pay amount. Petition for Review (PFR) File, Tab 5 at 9-10; see ID at 10 -12. In a response to the appellant’s motion to dismiss the petition for review, the agency has provided evidence demonstrating that it is in compliance with the interim relief order, incl uding a copy of a Standard Form 50 reinstating the appellant, an earnings and leave statement reflecting that she is being paid, and a signed affidavit explaining that the delay in returning her to duty is due to the fact that, consistent with Federal law, she must undergo additional background screen ing before she can be returned to duty status. PFR File, Tab 7 at 4-24. Because we agree that the agency has provided sufficient evidence of compliance with the administrative judge’s interim relief order, we deny the appellant’s motion to dismiss the pe tition for review. Additionally, on April 3 and October 18, 2019 , the appellant fi led two substantially similar request s for leave to file “[n]ew evidence which was not available before the record closed in this matter.” PFR File, Tab s 10, 12. The new e vidence, the appellant avers, is a favorable decision by the Equal Employment Opportunity Commission (EEOC) , Office of F ederal Operations , ordering the agency to, among other things, expunge the Performance Improvement Plan that served as the basis for the appellant’s removal under 5 U.S.C. chapter 43. PFR File, Tab 12 at 4; see Combs v. Department of Homeland Security , MSPB Docket No. DC-0432-18-0552 -I-2, Appeal File, Tab 5 at 6-25. B ecause we ultimately agree with the administrative judge’s decision reversing the agency’s removal action on due process grounds , even assuming that the EEOC decision was not available when the record close d below, nothing in that decision would have any effect on our decision here. We therefore DENY the appellant’s request s for leave to file an additional pleading. 4 ¶4 We also ORDER the agency to pay t he 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. ¶5 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully ca rried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶6 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant belie ves that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any communicati ons with the agency. 5 C.F.R. § 1201.182 (a). ¶7 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finan ce and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessa ry 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. 5 NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fa ilure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have qu estions 3 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. 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 your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after 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 resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Op portunity 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 Opportunit y Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your j udicial 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 yo u may file a 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 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. 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.go v. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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 1 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during th e back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, ref unds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interes t is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provid e same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	COMBS_CRYSTAL_DC_0432_17_0536_I_1_FINAL_ORDER_2003096.pdf	2023-02-15	null	DC-0432	NP
3,539	https://www.mspb.gov/decisions/nonprecedential/NORWOOD_BETTY_WILLIAMS_DC_1221_13_0830_W_1_REMAND_ORDER_2003103.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BETTY WILLIAMS NORWO OD, Appellant, v. SMALL BUSINESS ADMINISTRATION, Agency. DOCKET NUMBER DC-1221 -13-0830 -W-1 DATE: February 15, 2023 THIS ORDER IS NONPRECEDENTIAL1 James A. Westbrooks , Fort Washington, Maryland, for the appellant. Nathania Bates , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied her request for corrective action under the Whistleblower Protection Act 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 (WPA) .2 For the reasons set forth below, we GRANT the petition for review. We VACATE the administrative judge’s findings that the appellant exhausted only one disclosure and that it was not protected or a contributing factor in the agency’s decision to take a personnel action against her , and the administrative judge’s alternate finding that t he agency proved by clear and convincing evidence that it would have taken that action absent the appellant’s protected disclosure. We REMAND the case to the regional office for further adjudication in accordance with this Remand Order . BACKGROUND ¶2 The appellant was employed as an Audit M anager in the U.S. Small Business Administration (SBA) Office of Inspector General (OIG). Sometime in or after October 2010, the appellant developed concerns about a March 2010 audit report that had been the subject of t estimony to Congress and which she believed contained omissions and several inaccuracies.3 Initial Appeal File ( IAF), Tab 24 at 28-29. The appellant alleges having disclosed this information to a manager in the Credit Programs Group (CPG) , the Assistant Inspector General for Auditing (AIGA), and the Deputy Inspector General who responded with “we will reissue the report .” Id. at 29. However, the manager, after being promoted in early 2011 to Director of the CPG, decided not to reissue th e report. Id. ¶3 The appellant subsequently expressed concerns to the CPG Director about the sufficiency of evidence in a 2012 audit report4 and her belief s about the 2010 2 The WPA was amended by the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465 , which took effect on December 27, 2012. 3 SBA OIG Audit Report No. 10-10, Audit of Premier Certified Lenders in the Section 504 Loan Program . 4 The 2012 report, referenced by the appellant as the “H igh-Risk Lenders report,” appears most likely to have been SBA OIG Audit Report No. 12-20, Addressing Performance Problems of High -Risk Lenders Remains a Challenge for the Small Business Administration . See IAF, Tab 24 at 25-26. 3 report . Id. at 7, 25-26. The appellant shared her concerns the next day with the AIGA and met with the Inspector General on March 27, 2012 , to discuss her concerns and to request reassignment under a different first -line supervisor. Id. at 25-26. She follow ed up with a letter to the Inspector General , recounting her history of disclosures regarding both audit reports, disclosing that the CPG Director had bragged that the Deputy Inspector General had preselected her as Director and moved the duty station in the Director vacancy listing from agency headqu arters to a field office location purely for the Director’s benefit , and alleging that the CPG Director approved a nearly $1 million payment to a contractor to review loans , only to later have the work entirely redone by her own staff. Id. at 25-30. ¶4 In July 2012, the appellant met with an Equal Employment Opportunity (EEO) counselor to allege that the CPG Director had subjected her to harassment since September 2011 because of her race, sex, and age. IAF, Tab 10 at 67-73. Following an unsuccessful m ediation, id. at 72, the appellant filed a formal EEO complaint naming the CPG Director, the AIGA, the since -retired Deputy Inspector General, and the Inspector General. IAF, Tab 11 at 64-82. ¶5 Meanwhile, the appellant sent an email to officials in the U. S. Congress, the Office of Government Ethics, and the Council of Inspectors General on Integrity and Efficiency (CIGIE), repeating the disclosures that favoritism towards the CPG Director had resulted in her change of duty station to a field office , the decision not to retract the deficient March 2010 audit report, and the waste of nearly $1 million . IAF, Tab 1 at 25-28. She further alleged that because of the favoritism, the field office where the CPG Director worked had been allowed to remain open when the agency’s three other field offices were closed in October 2011. Id. at 26. She raised similar allegations in a separate email to the President. IAF, Tab 10 at 35-38. ¶6 By letter dated September 25, 2012, the CIGIE Integrity Committee informed the appellant that it lacked jurisdiction to address the a llegations raised 4 in her email because they did not appear to involve the actions of either the Inspector General herself, an individual who reported directly to the Inspector General, or a person w hose position had been designated by t he Inspector General. IAF, Tab 1 at 33. The appellant responded by letter in November 2012 asserting that the Inspector General, the Deputy Inspector General, the Counsel to the Inspector General, and the AIGA were all implicated in the actions she had describ ed. Id. at 34-35, 40-41. She also alleged , inter alia , that the Inspector General was responsible for systemic race and age discrim ination, id. at 36-38, and that both the Inspector General and the AIGA had placed sensitive loan information at risk, id. at 39. ¶7 Responding by letter to the CIGIE Integrity Committee a month later, the appellant forwarded a copy of an email exchange between the CPG Director and the AIGA that had been copied to several other staff members. Id. at 20. The email conveyed the Director’s message that she was working in a back office in headquarters that day, and the AIGA responded with a symbol denoting a wink (“;-)”). Id. at 21. The appellant reported that several staff members had told her that the AIGA’s message was inappropriate and made them feel uncomfortable. Id. at 20. After the CIGIE Integrity Committee informed the appellant that the matter fell outside its jurisdi ction, id. at 23, she reported the AIGA’s email to members of Congress, id. at 24. ¶8 During a December 2012 meeting between the CPG Director and the appellant to discuss the appellant ’s performance during the prior fiscal year , the CPG Director told the appellant that she had received negative feedback from other employees about the appellant’s communication and collaboration. On January 2, 2013, the appellant asked the CPG Director by email to identify the source of the negative feedback. The CPG Director responded with the names of two offices within SBA. IAF, Tab 10 at 84-85. ¶9 Five days later the appellant sent an email to several officials in the offices identified by the CPG Director , with copies to the AIGA and the CPG Director , in 5 which she apologized “for any dialogue (verbal or written) that I exchanged o r actions that I took during FY 2012 that resulted in your perception of me as negative or obstructionist.” Id. at 94. She asked for their forgiveness as well as “any suggestions tha t will make for a more collaborative working relationship in FY 2013 and beyond.” Id. Havin g received no response, the appellant sent another email a week later in which she also requested “details about the specific dialogue and actions that I took in FY 2012 tha t left you feeling like you did not want to work with me.” Id. at 104-05. The day after the appellant’s second email, the AIGA informed her that her emails might raise an issue of auditor independence and/or objectivity. Id. at 107. He stated that he was seeking clarification from the Auditing Standards Group at the Government Accountability Office (GAO) regarding those issues, and he directed her not to send any further emails on the matter. Id. at 107. ¶10 The AIGA presented his concern s regarding the appellant’s independence and objectivity to GAO. Id. at 113-14. In a telephone conversation that was later confirmed in writing, an official from the GAO Auditing Standards Gr oup advised the AIGA that, while the appellant’s emails we re in appropriate, they did not violate the Government Auditing Standard for Independence for either current or past auditing work. Id. at 125. Ho wever, the GAO official advised the AIGA that the appellant should not be assigned future work with the offices th at received her emails because management in those offices could perceive the emails as threatening or intimidating. Id. On February 4, 2013, the AIGA informed the appell ant that going forward, she was not to conduct any audit work involving the Office o f Credit Access or its subor dinate organizations. IAF, Tab 1 at 53. ¶11 In the meantime, in January 2013 , the appellant had forwarded her correspondence with CIGIE to the congressional committees with jurisdiction over the inspector general system . Id. at 24. The appellant also filed a complaint with the Office of Special Co unsel (OSC) on February 13, 2013, in which she 6 alleged retaliation for whistleblowing , citing the AIGA’s decision to restrict her ability to perform certain audit work as an act of reta liation. IAF, Tab 11 at 44-59. ¶12 In April 2013, OSC informed the appellant of its initial determination to close its file reg arding her complaint. IAF, Tab 1 at 89. In a written response to OSC’s determination that she had not provided enough specific i nformation regarding her disclosures, the appellant argued that her November 2012 letter to the CIGIE Integrity Committee and her January 2013 letters to members of Congress constituted protected activity under 5 U.S.C. § 2302 (b)(9). Id. at 14. She also alleged that the AIGA’s actions restricting her audit responsibilities violated 5 U.S.C. § 2302 (b)(12). Id. at 16. By letter dated May 24, 2013, OSC informed the appellant that her response had not provided a sufficient basis to alter its initial determinati on to close its file , and also informed her of her right to seek corrective action from the Board. IAF, Tab 11 at 60-63. ¶13 The appel lant remained in her position and continued perform ing other audit work. IAF, Tab 13 at 20. In June 2013, following the departure of another Audit Manager, the AIGA reassigned the appellant to serve in the same position in an audit group for which she wa s not prevented from performing any audit work within the group’s jurisdiction. Id.; IAF, Tab 11 at 99. ¶14 The appellant filed this individual right of action (IRA) appeal on July 7, 2013. IAF, Tab 1. She initially requested a hearing, id. at 2, but later withdrew that request, IAF, Tab 26, Initial Decision (ID) at 1. The administrative judge issued an initial decision based on the written record. ¶15 In her initial decision, t he administrative judge found that the appellant established having exhauste d her administrative remedies as to only one of her alleged disclosures , i.e., that OIG allowed an erroneous audit report to be published on its website , but that she failed to show that she had provided OSC with sufficiently clear and precise information about her remaining disclosures to establish exhaustion. ID at 11. The a dministrative judge further found that the 7 appellant nonfrivolously alleged that her disclosure was protected and that it was a contributing factor in the AIGA’s decision to restrict the scope of the audit work the appellant coul d perform beginning in February 2013 , and that therefore the appellant had established Board jurisdiction over her IRA appeal. ID at 10-12. However, on the merits of the appeal, the administrative judge found that the appellant failed to prove by preponderant evidence that her audit report disclosure was protected or that it was a contributing factor in the pe rsonnel action at issue. ID at 13-15. The administrative judge further found that the agency es tablished by clear and convincing evidence that it would have taken the same action absent the appellant’s disclosur e. ID at 15-17. Accordingly, the administrative judge denied the appellant’s request for corrective action.5 ID at 17. ¶16 The appellant fi led a timely petition for review of the initial decision , in which she challenges several of the administrative judge’s factual findings . Petition for Review (PFR) File, Tab 1 at 5-11. She argues that the administrative judge failed to properly consider additional disclosures , id. at 11-14, and she challenges the administrative judge’s findings that she failed to prove that her disclosure was protected or that it was a contributing factor in the personnel action, id. at 14-15. Finally, the appellant challenges the administrative judge’s finding that the agency proved by clear and convincing evidence that it would have taken the personnel action absent her disclosure. Id. at 15-17. The agency has responded in opposition to the pet ition for review, PF R File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. 5 Although the order lan guage at the end of the initial decision indicates that the IRA appeal was dismissed, ID at 18, it is apparent from the administrative judge’s finding of jurisdiction that the actual disposition of the appeal was a denial of the appellant’s request for cor rective action on the merits. 8 ANALYSIS6 ¶17 The Board has jurisdiction over an IRA appeal if the appellant has exhausted administrative remedies before OSC and makes nonfrivolous allegations that: (1) she engaged in wh istleblowing activity by making a protected disclosure; and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action. Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). In an IRA appeal, the standard for establishing subject matter jurisdiction and the right to a hearing is an appellant’s merely asserting a nonfrivolous claim, while the standard for establishing a prima facie case is that of preponderant evidence. Langer v. Department of the Treasury , 265 F.3d 1259 , 1265 (Fed. Cir. 2001). When an appellant meets her burden to establish a prima facie case of reprisal for whistl eblowing, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the same personnel action(s) absent the appellant’s whistleblowing. Scoggins v. Department of the Arm y, 123 M.S.P.R. 592, ¶ 26 (2016). The appellant fully exhausted all her claims before OSC and established the Board’s jurisdiction over her appeal . ¶18 The Board has re cently clarified the substantive requirements of exhaustion. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10-11. The requirements are met when an appellant has provided OSC with sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to those issues that have been previously raised with OSC. However, an appellant may provide a more detailed account of whistleblowing activities to the Board than she did to OSC. An appellant may establish exhaustion through her initial OSC complaint, evidence that she amended the original complaint, including but not limited to 6 We have reviewed the relevant legislation enacted since the filing of this appeal and find that it does not impact the outcome. 9 OSC’s determination letter and other letters from OSC referencing any amended allegations, and the appellant’s written responses to OSC referencing the amended allegations. An appellant may also establish exhaustion through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in the Board appeal. Id. ¶19 Here, while the administrative judge correctly found that the appellant established exhaustion before OSC regarding her disclosure of the errone ous audit report, the administrative judge further found that the appellant “failed to show that she provided OSC with sufficiently clear and precise information about her remaining disclosures.” ID at 11. The administrative judge recognized that OSC acknowledged receiving additional information in response to its initial determination, but she found that the appellant failed to establish what that additional informati on comprised. ID at 7. However, it appears that the appellant included with her initia l MSPB appeal copies of her additional disclosures as attachments to her response to OSC’s initial determination. IAF, Tab 1 at 12, 17-45. We find that the appellant’s submissions were adequate to provide OSC with a sufficient basis to pursue an investig ation. Accordingly, we find that the appellant fu lly exhausted all her claims before OSC. ¶20 We agree with the administrative judge that the appellant nonfrivolously alleged that she made at least one protected disclosure that was a contributing factor in the challenged personnel ac tion. ID at 11-12. Accordingly, the administrative judge properly found that the appellant establ ished jurisdiction over her IRA appeal. The appellant established that she made protected disclosures. ¶21 On the merits of the ap pellant’s reprisal claims, the administrative judge found that the appellant failed to establish either that her disclosure s about the erroneous 2010 audit report were protected or that they were a contributing factor in the AIGA ’s decision to restrict the scope of the appellant’s audit work beginning in February 2013. ID at 12-15. Having found that the appellant failed 10 to exhaust her administrative remedies as to her other disclosure s, the administrative judge did not address those disclosures on the mer its. ¶22 In considering whether the disclosure s about the deficient 2010 audit report were protected, the administrative judge found that the appellant did not establish by preponderant evidence that she reasonably believed that her disclosures evidenced any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. ID at 13-14; see 5 U.S.C. § 2302 (b)(8)(A). In part, the administrative judge relie d on the Department of Transportation (DOT) OIG employees ’ finding that the 2010 report at issue in this appeal did not need to be recalled and reissued . ID at 13. However, any such finding by the DOT OIG is not dispositive of whether the appellant ’s initial belief —that posting an erroneous report constituted a rule violation —was reasonable . IAF, Tab 24 at 7. As SBA ’s OIG itself note d in it s pleadings , its audits must “comp ly with standards established by [GAO’s] Comptroller General .” Id. at 10. We find that the GAO audit standards constitute “rules” for the purposes of 5 U.S.C. § 2302 (b)(8). A central pillar of the GAO auditing standards is reducing “the risk that auditors will not detect a mistake, inconsistency, significant error, or fraud in the evidence supporting the audit ,” and “[a]uditors should determine the overall sufficiency and app ropriateness of evidence to provide a reasonable basis for the findings and conclusions[.]” GAO , Government Auditing Standards, GAO -12-331G , ch. 6, ¶¶ 6.05 , 6.6 9 (Dec. 2011), https://www.gao.gov/a ssets/gao -12-331g.pdf . Additionally, SBA ’s OIG has its own audit policies, which we find also constitute “rules” for the purposes of 5 U.S.C. § 2302 (b)(8). IAF, Tab 1 at 77. ¶23 Moreover, that SBA OIG engage d DOT OIG for a “special quality assessment review” through the lens of its 2010 auditing policies and procedures indicates that the appellant’s concerns were not unreasonable . IAF, Tab 24 at 7, 20-21, 31 -32. That the appellant’s disclosures re garding the report resulted in remedial revisions to the SBA OIG’s audit process further highlights the 11 significance of the issues she raised . Id. at 20-21, 32 . Furthermore, the appellant alleged that the SBA OIG had provided misleading testimony to Cong ress based on the report. Id. at 28-29. The same criminal statute prohibiting “materially false, fictitious, or fraudulent statement[s] or representation[s]” to OIG employees , or “falsif[ying], conceal[ing], or cover[ing] up by any trick, scheme, or devi ce a material fact,” applies to OIG employees themselves —both in their reports and their appearing before Congress .7 18 U.S.C. § 1001 (a). We therefore find that the appellant established by preponderant evidence that a reasonable person could believe —particularly prior to receiving the results of the DOT OIG review —that her disclosures about the audit reports evidenced a violation of law, rule, or regulation , and that those disclosures were t hereby protected .8 Remand is necessary to determine if the appellant has established that her protected disclosures were a contributing factor in the agency’s taking a covered personnel action against her. ¶24 The term “contributing factor” means any discl osure that influences an agency’s decision to threaten, propose, take, or not take a personnel action regarding the individual making the disclosure. Usharauli v. Depar tment of Health and Human Service s, 116 M.S.P.R. 383 , ¶ 31 (2011); 5 C.F.R. § 1209.4 (d). The most co mmon way of proving the contributing factor element is the “knowledge/timing test.” Chavez v. Department of Veterans Aff airs, 120 M.S.P.R. 285 , ¶ 27 (2013). Under that test, an appellant can prove that a disclosure was a contributing factor in a personnel action through evidence that the official taking the personnel action knew of the whistleblowing disclosure and took the personnel action within a period of time such that a reasonable person 7 Significantly, whether the 2010 report needed to be recalled appears to have hinged on whether the omissions and inaccuracies were “material” to the report’s findings and recommendations. IAF, Tab 24 at 20, 31 -32. 8 With this finding , we need not decide whether the appellant’s subsequent disclosures to CIGIE and to Congress, which took place after the DOT OIG review found it unnecessary to reissue the 2010 report, were protected. 12 could conclude that the disclosure was a contributing factor in the personnel action. Id. Satisfying the knowledge/timing test demonstrate s that a protected disclosure was a contributing factor in a personnel action. Gonzalez v. Department of Transportation , 109 M.S.P.R. 250 , ¶ 20 (2008). ¶25 The appellant indicated in her OSC complaint that the AIGA knew about her disclosures to CIGIE and Congress through t he Inspector General. IAF, Tab 11 at 57-58. The Inspector General declared under penalty of perjury that she learned of allegations to th e CIGIE Integrity Committee based on a letter from the committee , but that it did not identify the individual who made the allegations. IAF, Tab 24 at 33. The AIGA declared under penalty of perjury that he was not aware of the appellant’s disclosures unt il she appealed to the Board. IAF, Tab 13 at 20. The administrative judge found that the appellant failed to prove that anyone who was involved in the personnel action was aware of her disclosures befor e that action was taken. ID at 14-15. On review, t he appellant argues that both the Inspector General and the AIGA must have known about her disclosures earlier , in part because they were both heavily involved in C IGIE activities. PFR File, Tab 1 at 15. She also argues that the Inspector General must have known about her disclosures to Congress because the Inspector General was “confirmed by Congress.” Id. However, there is no evidence that either official was involved in the CIGIE Integrity Committee to which the appellant made her disclosures, nor is there evidence that anyone who was involved in CIGIE activities necessarily would have been aware of thos e disclosures. Similarly, there is no evidence that Congress would have shared the appellant’s disclosures with the Inspector Gene ral simply because she had been confirmed. ¶26 Nevertheless, the aforementioned communications outside of the appellant’s agenc y were not her first disclosures about the deficiencies in the 2010 audit report. Specifically, the appellant’s interactions with the CPG Director on the issue began in 2011 . IAF, Tab 24 at 29. As recounted by the administrative judge , the appellant all eged having shared her concerns with the CPG Director 13 and the AIGA at least as early as February 2012 . ID at 4; IAF, Tab 24 at 25-26. Subsequently, the appellant met with the Inspector General to discuss the allegedly deficient audit s and other concerns, and she followed up with a letter. IAF, Tab 24 at 25; ID at 4. Overall, as the SBA OIG acknowledges in its pleadings, the agency “was well aware of Appellant’s concerns prior to her disclosure of the same concerns to the CIGIE Integrity Committee.” IAF, Tab 24 at 20. Accordingly , we find that the appellant did in fact put her supervisors on notice of her disclosure s about deficient audit s. We further find that the personnel action that the agency took on February 4, 2013 —that is, the AIGA’s decisio n informing the appellant that she was no longer to conduct any audit work involving the Office of Credit Access or its subordinate organizations —occurred within a period of time such that a reasonable person could conclude that the appellant’s protected d isclosure s were a contributing factor in that personnel action. T hus, we find that, under the knowledge/timing test, the appellant established that her disclosure s regarding the erroneous audit report were a contributing factor in the personnel action taken against her. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶¶ 18, 21 (2015). ¶27 The final hurdle to the appellant ’s establish ing a prima fac ie showing of retaliation for whistleblowing is to prove that the agency’s action is a covered personnel action. As is relevant here, a “personnel action” is defined under the WPA as a significant change in duties, responsibilities , or working conditions. 5 U.S.C. § 2302 (a)(2)(A) (xii) . As noted, the personnel action at issue is the agency’s decision that the appellant was not to conduct any further audit work involving the Office of Credit Access or its subordinate organizations. ¶28 To meet the burden of pro of in this regard , the appellant must provide sufficient information and evidence for the Board to determine whether the agency’s alleged action or actions were “significant.” See Shivaee v. Department of the Navy , 74 M.S.P.R. 383 , 388 -89 (1997). The Board has recently clarified this requirement, stating that only agency actions that, individually or 14 collectively, have practical and significant effects on the overall nature and quality of an employee’s working condit ions, duties, or responsibilities will be found to constitute a covered personnel action under section 2302(a)( 2)(A)(xii). Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 16. ¶29 The administrative judge failed to make a finding on this issue . Given the Board’s recently -issued guidance and the findings we have made above, we deem it appropriate to remand this case to allow the administrative judge to determine if the appellant has established that she suffered a significant change in duties, responsibilities, or working conditions when , beginning on February 4, 2013, the agency re stricted her ability to perform certain audit work .9 If, on remand, the administrative judge finds that the appellant has failed to establish that she suffer ed a covered personnel action under section 2302(a)(2 )(A)(xii) , the administrative judge shall iss ue a new initial decision denying corrective action . If, however, the administrative judge finds that the appellant does make such a showing, thereby establish ing a prima facie cas e of whistleblower retaliation, the administrative judge must then determin e if the agency has established by clear and convincing evidence that it would have taken the same personnel action absent the appellant’s protected disclosures.10 Scoggins , 123 M.S.P.R. 592 , ¶ 28. 9 The administrative judge may, in her discretion, allow the parties to present further documentary evidence on this issue. 10 If necessary, the administrative judge shall consider whether the additional disclosures we have found were exhausted with OSC, including inappropriate behavior by the AIGA, were protected and a contributing factor to the covered personnel action. 15 ORDER ¶30 The appeal is remanded for further adjudication in accordance with this Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	NORWOOD_BETTY_WILLIAMS_DC_1221_13_0830_W_1_REMAND_ORDER_2003103.pdf	2023-02-15	null	DC-1221	NP
3,540	https://www.mspb.gov/decisions/nonprecedential/KNOWLIN_TREDITH_H_DC_0752_17_0703_I_1_FINAL_ORDER_2003374.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TREDITH H. KNOWLIN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DC-0752 -17-0703- I-1 DATE: February 15, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Allison B. Eddy , Esquire, Virginia Beach, Virginia, for the appellant. Amanda E. Shaw, Esquire, Roanoke, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leav itt, Member Member Leavitt issues a separate dissenting opinion. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal and found that she failed to prove her affirmative defenses . For the reasons d iscussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 REVERSE the initial decision in part to find that the agency violated her due process rights, AFFIRM the portion of the initial decision that found that she failed to prove her equal employment opportunity (EEO) retaliation claim , and DO NOT SUSTAIN the appellant’s removal. BACKGROUND ¶2 The appellant was employed as a GS- 11 Military Services Coordinator (MSC) at the Veterans Service Center of the Veterans Benefits Administration Roanoke Regional Office and worked at the Portsmouth Naval Hospital. Initial Appeal File (IAF), Tab 4 at 9. According to the appellant, on March 16, 2017, a coworker recounted an incident to her in which he interacted with a female service member when he was enlisted in the U.S. Navy. IAF, Tab 21 at 53. In describing this incident to the appellant, he referred to the female service member’s sexual orientation in derogatory terms and demonstrated her behavior “by grabbing himself twice.” Id. The agency credited the appellant’s statements, and the appellant’s supervisor issued the coworker a letter of reprimand for sexual harassment on May 12, 2017. Id . at 42, 50 -52. ¶3 As an MSC, the appellant was responsible for assisting service members being separated for medical reasons. IAF, Tab 4 at 54-55. Between March 7 and 23, 2017, she met with at least three service members regarding their medical separations. Id. at 95 -96. All three reported that their interaction s with her were brusque, hosti le, and disrespectful. Id . at 98, 100, 102- 103, 117- 121, 125- 126. On June 12, 2017, the agency proposed the appellant’s removal for “disrespectful, insulting, abusive, insolent, or obscene language or conduct to or about . . . other employees, patients, or visitors” based on these events. Id. at 95- 97. The proposal notice indicated that the evidence file supporting the proposal was available for the appellant’s review if she desired. Id . at 96. The notice did not 3 include a discussion of the Douglas2 factors. Id . at 95- 97. After the appellant submitted her written reply, id. at 13-94, the deciding official issued a final decision sustaining the charge and removing her from Federal service, effective July 22, 2017, id. at 10-12. In the decision, the deciding official expressly stated that the decision “takes into consideration the aggravating factors considered by the proposing official in determining an appropriate penalty.” Id. at 10. ¶4 On August 1, 2017, the appellant filed the instant appeal with the Board. IAF, Tab 1. In her appeal, she denied the charge and specifications, alleged that the removal was in retaliation for her complaint to her supervisor that her coworker sexually harassed her, claimed that the agency violated her due process rights when the deciding official considered the proposing official’s Douglas factors analysis without informing her and by failing to provide sufficient detail for one of the specifications, and asserted that she received a disparate penalty. IAF, Tab 20 at 18. ¶5 After holding the requested hearing, the administrative judge issued an initial decision finding that the agency proved the charge by preponderant evidence , that the appellant failed to prove her affirmative defenses of EEO retaliation and due process violations, and that there was no evidence that she was subjected to a disparate penalty. IAF, Tab 48, Initial Decision (ID) at 3- 15. The appellant has filed a petition for review, and the agency has responded. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 In the appellant’s petition for review, she challenges the administrative judge’s credibility findings regarding the agency’s witnesses. PFR File, Tab 1 at 18-27. She argues that the admi nistrative judge erred in finding that she failed to prove that her removal was issued in retaliation for her protected EEO activity 2 See Douglas v. Veterans Administration, 5 M.S.P.R. 280 , 305- 06 (1981) (providing a nonexhaust ive list of factors relevant to a determination of a reasonable penalty). 4 of reporting sexual harassment and that the agency violated her due process rights. Id. at 4, 11 -18. She also renews her claim that she received a disparate penalty from other employees who engaged in similar misconduct. Id. at 27- 29. As discussed below, we find that the agency violated the appellant’s due process rights. Because we reverse her removal on due process grou nds, we decline to address her arguments concerning the charges except as necessary to address her EEO retaliation affirmative defense. We also do not address her disparate penalty claim. We agree with the administrative judge that the appellant did not meet her burden to prove her EEO claim. The agency’s removal process violated the appellant’s due process rights. ¶7 The essential requirements of procedural due process are prior notice of the charges against the employee and a meaningful opportunity to respond to those charges. Cleveland Board of Education v. Loudermill, 470 U.S. 532 , 546 (1985). The appellant argued below and reasserts on review that the agency violated her due process rights when it failed to provide sufficient detail of the allegations set forth in one of the specifications and when the deciding official considered the proposing official’s Douglas factors analysis and discussion of relevant aggravating factors. IAF, Tab 20 at 18; PFR File, Tab 1 at 4, 11- 16. The administrative judge did not address these due process arguments. We agree with the appellant that the deciding official considered an aggravating factor of which the appellant did not have notice and an opportunity to respond. ¶8 The same day that the proposed removal was issued, the proposing official completed a Douglas factors worksheet. IAF, Tab 5 at 6- 12. In the worksheet, under the “notoriety of the offense or its impact upon the reputation of the [a]gency,” she wrote that the appellant’s behavior “could have a negative impact” on the agency and those stationed at the appellant’s location . Id. at 8-9. She further stated that if the behavior continued, “it could also be chronicled in the local media which would lead to additional scrutiny on the agency.” Id. at 9. I t appears undisputed that the agency did not provide the appellant with the 5 proposing official’s Douglas factor s analysis and that the de ciding official considered the analysis, although it is not clear from the record how he received the worksheet. IAF, Tab 4 at 10; Tab 46, Hearing Compact Disc, Day 1 (HCD 1) (testimony of the deciding official); Tab 47, Hearing Compact Disc, Day 2 (HCD 2) (testimony of the appellant). It is also undisputed that the deciding official considered the notoriety of the offense and the possibility that it could produce negative publicity for the agency as an aggravating factor in his decision to remove the appellant. HCD 1 (testimony of the deciding official). ¶9 We find that the consideration of the potential notoriety of the offens e was an improper ex parte communication. R egardless of whether the deciding official relied on the proposing official’s analysis of the notoriety factor or he considered it separately on his own prior to issuing the decision, the agency was required to inform the appellant that it was considering the notoriety factor as an aggravating one before it imposed the removal. See Jenkin s v. Environmental Protection Agency, 118 M.S.P.R. 161 , ¶ 10 (2012) (stating that when determining whether a due process violation has occurred, there is no basis for distinguishing between ex parte information provided to the deciding official and information personally known by the deciding official if the information was considered in reaching the decision and not previously disclosed to the appellant) ; Lope s v. Department of the Navy, 116 M.S.P.R. 470 , ¶ 10 (2011) (observing that when a deciding official considers either ex parte information provided to him or information personally already known to him, the employee is no longer on notice of portions of the evidence relied upon by the agency in imposing the penalty ). ¶10 When an employee has not been given notice of an aggravating factor supporting an enhanced penalty, as was the case here, an ex parte communication with the deciding official regarding such factors may constitute a constitutional due process violation. Ward v. U.S. Postal Service, 634 F.3d 1274 , 1280 (Fed. Cir. 2011). However, “ not every ex parte communication” rises to the level of a due process violation; “[ o]nly [those] that introduce new and material 6 information ” do. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 , 1376 -77 (Fed. Cir. 1999) . In deciding whether new and material information has been introduced by means of ex parte communications, the Board should consider factors such as “ whether the ex parte communication merely introduces ‘cumulative’ information or new information; whether the employee knew of the information and had a chance to respond to it; and whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. ” Id . at 1377; see Ward, 634 F.3d at 1280 (instructing the Board to apply Stone to determine if “new and material information” was introduced by the deciding official to enhance the penalty ). The main concern is that an appellant have notice and an opportunit y to respond to information “so substantial and so likely to cause prejudice” that the failure to provide it amounts to a deprivation of her property interest in continued employment. Stone, 179 F.3d at 1374- 75, 77. ¶11 Regarding the first factor, the agency argues that the notoriety of the offense is not new information because it “flowed naturally from the [c]harge” and did not provide any additional information that was not already apparent from the proposal and evidence file. PFR File, Tab 3 at 11. We disagree. The deciding official’s consideration that the appellant’s misconduct “could” have a negative impact and lead to additional scrutiny on the agency was purely speculative. Nearly any misconduct by an employee has the potential for notoriety. In the absence of actual notoriety in the media or in the community, there was no reason to think that this counterfactual scenario should have been of special concern to the agency in this case . As such, the appellant could not have known that the agency wo uld rely on the notoriety of the offense as an aggravating factor or that the deciding official would construe the factor in such a way. See Jenkins , 118 M.S.P.R. 161 , ¶ 12 (finding the deciding official’s reliance on the recommended penalties from the agency’s table of penalties for a charge other than those set forth in the proposal notice constituted new information 7 because the appellant was not aware that the proposed penalty would be considered that way). Therefore, the deciding official’s reliance on the notoriety factor cannot f airly be deemed cumulative or immaterial to the final decision. See id . ¶12 Regarding the second Stone factor, it is undisputed that the appellant did not have an opportunity to respond to the agency’s reliance on the notoriety factor. In fact, it is unclear from the record when she even became aware of which factors the agency was relying upon for an aggravated penalty. A lthough the proposing official informed the appellant that the agency was concerned about an internal complaint lodged by one of the affe cted service members, IAF, Tab 4 at 96, this is not the same thing as the agency’s fear of possible future media attention. Regarding the third Stone factor, it is also undisputed that the deciding official considered the notoriety factor. He testified t hat the notoriety of the appellant’s misconduct was an important factor in his decision and that the proposing official’s analysis of that factor “did not go far enough. ”3 HCD 1 (testimony of the deciding official). However, there is no evidence in the record that the information resulted in undue pressure on him to remove the appellant. Nonetheless, our reviewing court has emphasized that whether the additional information was of the type likely to result in undue pressure is only one factor and is not the ultimate inquiry. Ward, 634 F.3d at 1280 n.2. Specifically, the court recognized that “the lack of such undue pressure may be less relevant to determining when the ex parte communications deprived the employee of due process where . . . the [d]eciding [o]fficial admits that the ex parte communications influenced his penalty determination.” Id. Therefore, while no 3 Even if the dissent is correct that the deciding official considered the notoriety of the offense independently of the proposing official’s analysis, the due process problem woul d remain. A deciding official is not permitted to consider aggravating factors that the employee was not warned about in advance, regardless of whether any ex parte communication was involved. See Richardson v. Department of Veterans Affairs , 2023 MSPB 1 , ¶ 32. 8 clear evidence of undue pressure exists, the deciding official’s testimony is clear evidence of the materiality of the notoriety of the offense in his decision to remove the appellant. ¶13 Based on the foregoing, we find that the deciding official’s consideration of the notoriety factor was so substantial and likely to cause prejudice that the agency’s failure to notify the appellant in advance violated her right to due process. See Gray v. Department of Defense, 116 M.S.P.R. 461 , ¶¶ 9 -13 (2011) (finding a due process violation when the deciding official considered the appellant’s likely loss of eligibility for a sensitive position as an aggravating factor without notifying the appellant). Accordingly, we reverse the initial decision in this regard and do not sustain the appellant’s removal. The agency may not remove the appellant unless and until she is afforded due process. Id ., ¶ 12. In light of our findings here, we find it unnecessary to reach the appellant’s additional due process claim that one of the agency’s specifications was vague . The appellant failed to show that her EEO activity was a motivating factor in her removal. ¶14 Even though we reverse the agency’s removal action on due process grounds, we must still address the appellant’s E EO retaliation claim because of the potential for damages. IAF, Tab 6 at 4- 5; see Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶¶ 8, 18-20 (2016) (finding that when the appellant has been returned to the status quo ante and still has an outstanding claim of discrimination for which she has requested compensatory damages, her appeal is not moot and the Board must adjudicate the affirmative defense). ¶15 The appellant claims that her removal was in retaliation for complaining of her coworker’s March 16, 2017 sexual harassmen t. PFR File, Tab 1 at 16- 18; IAF, Tab 1 at 6, Tab 20 at 18. When an appellant asserts an affirmative defense of discrimination or retaliation for EEO activity protected by Title VII, she bears the burden to prove by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage v. Department 9 of the Army, 122 M.S.P.R. 612 , ¶ 51 (2015) , overruled in part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. If the appellant meets her burden, the burden then shifts to the agency to prove by preponderant evidence that it would have taken the personnel action regardless of the discriminatory or retaliatory motive. Id., ¶¶ 4 8-49, 51. The Board has clarified that evidence of discrimination or retaliation should not be sorted into piles of “direct” and “indirect” e vidence, and emphasized that the evidence should be considered as a whole in determining if an appellant satisfied her burden. Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 , ¶¶ 28- 31 (2016) , clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24. ¶16 Here, the administrative judge found that the appellant failed to explain how her complaint had any connection to her discipline. ID at 13. Although the administrative judge informed the appellant of the “motivating factor” causation standard in the orde r and summary of the prehearing conference, IAF, Tab 45 at 2-4, she did not apply that standard in her analysis in the initial decision, finding only that the appellant failed to show a “causal connection,” ID at 13. To clarify, as explained below, we find that the appellant failed to show that her EEO activity was a motivating factor in the agency’s decision to remove her. ¶17 The record shows that on March 20, 2017, the appellant reported alleged sexual harassment by a coworker on March 16, 2017. IAF, Tab 20 at 50 -52. It is undisputed that the coworker was one of the agency employees named as a witness in specifications B and D, which both concern the appellant’s behavior while interacting with a service member on March 15, 2017. IAF, Tab 4 at 95-96; PFR File, Tab 1 at 16- 17; HCD 2 (testimony of the coworker). The appellant claims that no agency employee, including the coworker, reported or submitted any statements regarding her alleged behavior during the March 15, 2017 interaction with the service membe r until after she filed the sexual harassment complaint against the coworker on March 20, 2017. PFR File, Tab 1 at 17. She 10 claims that, due to the timing of the sexual harassment complaint, the coworker and other agency witnesses had motive to lie. Id. at 22-23. ¶18 The administrative judge considered this argument but ultimately credited the service member’s and agency witnesses’ testimony, which was largely consistent with the allegations in the specifications, thereby discounting the appellant’s assertion that her coworker was lying about the incident because she had filed a sexual harassment complaint against him. ID at 13. Specifically, she found that the witnesses to the March 15, 2017 incident all testified in a clear and straightforward manner, th at they had no motive to lie or exaggerate, that their statements were corroborated by other witnesses, and that their testimony matched prior statements they had made. ID at 4- 9. Because these credibility determinations were explicitly based on the demeanor of witnesses testifying at the hearing, as well as other appropriate credibility considerations, we defer to them. See Haebe v. Department of Justice, 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (providing that the Board must give deference to an administrative judge’s credibility determinations when they are based explicitly or implicitly on the observations of witnesses testifying at hearing and may overturn such determinations only when it has “sufficiently sound” reasons for doing so ); Hillen v. Department of the Army, 35 M.S.P.R. 453 , 458 (1987) (providing factors relevant to credibility findings) . ¶19 Further, although the deciding official testified that he was aware of the sexual harassment complaint and effectuated the removal within 4 months, he testified that his knowled ge of the complaint did not affect his impressions of the evidence in the appellant’s case or his decision to remove her. HCD 1 (testimony of the deciding official). Specifically, he stated that he had “no desire” to protect the subject of the sexual harassment complaint, that he would have removed the appellant “irrespective” of the complaint, and that it had “nothing to do with” the removal. Id . The administrative judge found the deciding official to be a “credible, persuasive witness,” ID at 15, and w e defer to that finding, see Haebe, 11 288 F.3d at 1301. Aside from temporal proximity , the appellant has not pointed to any evidence suggesting that the deciding official had a motive to retaliate against her. Accordingly, we find that the appellant failed to prove that her EEO activity was a motivating factor in her removal.4 ¶20 Based on the foregoing, we grant the appellant’s petition for review and reverse the initial decision. Because we reverse the initial decision on due process grounds, we do not address her remaining arguments on review. See Solis v. Department of Justice, 117 M.S.P.R. 458 , ¶ 10 (2012) (declining to consider any of the appellant’s other arguments after reversing an agency removal action on due process grounds); Lopes, 116 M.S.P.R. 470 , ¶ 14 n.4 (making no findings with respect to the merits of the agency’s charges after reversing the appellant’s removal based on a due process violation). ORDER ¶21 We ORDER the agency to CANCEL the appellant’s removal and to restore her effective July 22, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days af ter the date of this decision. ¶22 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the 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. 4 Because the appellant here failed to prove her initial burden that a prohibited factor played any part in the agency’s decision, we do not reach the question of whether retaliation was a but -for cau se of that decision. 12 ¶23 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶24 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’ s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶25 For agencies whose payroll is administered by either the National Finance Center of the Department of 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 OR DERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELLANT REG ARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at T itle 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. 13 You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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 a ny matter. 14 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 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 attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 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 15 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you 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 16 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 17 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DF AS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment . Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CENTER 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 Prote ction Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemploy ment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non- taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504- 255-4630. DISSENTING OPINION OF TRISTAN L. LEAVIT T in Tredith H. Knowlin v. Department of Veterans Affairs MSPB Docket No. DC- 0752- 17-0703- I-1 ¶1 For the reasons explained below, I respectfully dissent from the majority opinion in this case. ¶2 The deciding official in this case rece ived ex parte information from the proposing official, a Douglas factors worksheet that was not provided to the appellant. The majority opinion finds that the ex parte information violated the appellant’s constitutional due process rights. The opinion focuses exclusively on a section of the worksheet dealing with the “notoriety of the offense or its impact upon the reputation of the [a]gency.” The proposing official wrote on the worksheet: This type of behavior could have a negative impact on the Department of Veterans Affairs and the employees stationed at the Naval Medical Center Portsmouth. We are located there in a collaborative program with the Department of the Navy as part of the Integrated Disability Evaluation System program. If this behavior continued it could also be chronicled in the local media[,] which would lead to additional scrutiny on the agency. The behavior exhibited is not acceptable as this is a customer service oriented position. Initial Appeal File (IAF), Tab 5 at 8-9. ¶3 As the majority opinion notes, the U.S. Court of Appeals for the Federal Circuit reasoned in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999): “[N]ot every ex parte communication is a procedural defect so substantial and so likely to cause prejudice that it undermines the due process guarantee and entitles the claimant to an entirely new administrative proceeding.” Id. at 1376 -77. Rather, the standard the Federal Circuit articulated is whether ex parte communications “introduce new and material information to 2 the deciding official[.]” Id. at 1377. This applies equally to ex parte determinations relating to the charge itself and ex parte communications relating to the penalty. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011). To determine whether information is “new and material,” the court stated in Stone : Among the factors that will be useful for the Board to weigh are: whether the ex parte communication merely introduces “cumulative” information or new information; whether the employee knew of the error and had a chance to respond to it; and whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Stone, 179 F.3d at 1377. ¶4 Regarding the first of these factors here, I agree with the agency that the proposing official’s four sentences about the notoriety of the offense introduced only cumulative information because they “flowed naturally from the [c]harge” and did not provide any additional information that was not already apparent from the proposal and evidence file. Petition for Review File, Tab 3 at 11. The majority opinion declares, “The deciding official’s consideration that an appellant’s misconduct ‘could’ have a negative impact and lead t o additional scrutiny on the agency was purely speculative.” Supra. Yet this conclusion required no leap of logic for either the appellant or the deciding official, given that the notice of proposed removal itself highlighted negative attention the agenc y had already experienced because of the appellant’s actions: “As a result of your treatment of [a Navy SEAL who deployed twice to a combat zone], a complaint was made to the Office of the Secretary of the VA about your behavior, and your supervisors had to respond.” IAF, Tab 1 at 10. A second service member’s fears of retaliation, as recounted in the notice of proposed removal, practically beg for scrutiny of the agency: “The service member stated he fears his claims for disability will have retribution in the VA process now because of the treatment he received.” Id. at 9. While anticipating future consequences is 3 always speculative, that continued mistreatment of suffering service members could attract further negative attention —including in the medi a—seems obvious. ¶5 The second factor the court in Stone directed the Board to consider was whether the employee knew of the error and had a chance to respond to it. Acknowledging that the appellant did not learn the proposing official conducted a Douglas factors analysis until she received the notice of removal, the appellant clearly had the opportunity to respond to the charge that her actions reflected negatively on the Department of Veterans Affairs and employees stationed at Naval Medical Center Portsmouth. As the notice of proposed removal stated, “As a Military Services Coordinator, your performance standards require you to communicate in a courteous manner with Veteran/service member customers during the personal or telephone interview process. This conduct toward a service member cannot be tolerated[.]” IAF, Tab 1 at 9-10. I do not see how the appellant could have further responded regarding the notoriety of the offense beyond the response she provided. ¶6 Even if new, ex parte information may or may not be material. While Stone was not exhaustive regarding the factors the Board might consider, the third and final factor goes to the materiality of the ex parte information: were the ex parte communications of the type likely to result in undue pre ssure upon the deciding official to rule in a particular manner? Stone, 179 F.3d at 1377. The majority opinion acknowledges there is no such evidence in the record. Supra. Instead, the opinion pivots to Ward , where the court stated: “[T]he lack of such undue pressure may be less relevant to determining when the ex parte communications deprived the employee of due process where . . . the [d]eciding [o]fficial admits that the ex parte communications influenced his penalty determination.” Ward , 634 F.3d at 1280 n.2. The court in Ward continued: “Under these circumstances, the materiality of the ex parte communications appears to be self -evident from the Deciding Official’s admission.” Id. 4 ¶7 Here, the appellant’s strongest argument is that the removal notice states: “This decision . . . takes into consideration the aggravating factors considered by the proposing official in determining an appropriate penalty.” IAF, Tab 1 at 12. While this is a close call given the inclusion of this language in the removal notice, it appears to have been pro forma. In the hearing before the administrative judge, the deciding official explicitly testified that the proposing official’s analysis of the Douglas factors did not influence his own analysis, and that instead he believed the proposing official’s analysis of the notoriety Douglas factor “did not go far enough.” Hearing Compact Disc, Day 1 (HCD 1) (testimony of the deciding official). The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . It may not overturn an administrative judge’s demeanor -based credibility findings merely because it disagrees with those findings. Purifoy v. Department of Veterans Affairs, 838 F.3d 1367 , 1372 (F ed. Cir. 2016) (quoting Haebe , 288 F.3d at 1299). The administrative judge “found [the deciding official] a credible, persuasive witness,” Initial Decision (ID) at 15, and I believe we must defer to her credibility finding on this issue. ¶8 The majority opinion declares that “[i]t is . . . undisputed that the deciding official considered the notoriety of the offense and the possibility that it could produce negative publicity for the agency as an aggravating factor in his decision to remove the appellant,” and “the deciding official’s testimony is clear evidence of the materiality of the notoriety of the offense in his decision to remove the appellant.” Yet the relevant question is not whether the deciding official considered the notoriety Douglas factor. (Indeed, the whole point of Douglas v. Veterans Administration is that agencies should consider all relevant factors. 5 M.S.P.R. 280 , 303-08 (1981)). It is not even whether that factor was material to 5 his overall decision. The relevant question is whether the ex parte information was material to the deciding official’s decision, which, as noted above, the deciding official testified i t was not (and the administrative judge found this testimony credible). ¶9 The deciding official testified that he in fact learned no new information from the proposing official’s Douglas factors worksheet, and that he conducted his own analysis of the Douglas factors. HCD 1 (testimony of the deciding official). He thoroughly explained his Douglas factors analysis at the hearing, including several mitigating factors in the appellant’s favor. Id. The initial decision noted that the deciding official “testified at length as to why he regarded the appellant’s misconduct as extremely serious.” ID at 14. Among other things, the deciding official testified, “This position is one of the most critical positions that [the Department of Veterans Affairs] has. We are dealing directly with service members who are separating because of medical reasons.” HCD 1 (testimony of the deciding official). According to the initial decision, the deciding official f urther testified that the appellant’s “misconduct disrupted operations and other employees and clients at the hospital, given the loud and disruptive disturbance she caused[.]” ID at 14. Overall, the administrative judge found that the deciding official “credibly testified as to his reasoned consideration of the relevant factors.” ID at 15. Thus, that “it is . . . undisputed that the deciding official considered the notoriety factor,” as the majority opinion notes, supra, speaks not to the materiality of the ex parte information but rather to the reality that the notoriety Douglas factor would be significant to anyone who considered the case —even without the proposing official’s Douglas factors worksheet. This significantly diminishes the materiality of the worksheet, and I believe the third Stone factor weighs in favor of the agency. ¶10 As the majority opinion acknowledged, the court in Ward noted that Stone factor three “is only one of several enumerated factors and is not the ultimate inquiry[.]” Ward , 634 F.3d at 1280 n.2. Indeed, the court in Stone rephrased 6 precisely the ultimate inquiry: “Ultimately, the inquiry of the Board is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377. Given the foregoing, it seems quite clear to me that this case does not demonstrate such a set of facts. I thus would find that the ex parte information was not “new and material” information. ¶11 The majority opinion cites two earlier Board cases for the proposition that an agency is required to inform an appellant that it is considering a factor as an aggravating one before it imposes a removal, r egardless of whether a deciding official relies on a proposing official’s analysis or considers the factor separately on his own prior to issuing the decision. Supra; Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161 , ¶ 10 (2012); Lopes v. Department of the Navy , 116 M.S.P.R. 470 , ¶ 10 (2011). Yet I believe both of those cases are distinguishable from the case at hand. Lopes involved past misconduct and prior discipline, which the deciding official considered despite their not being included in the notice of proposed removal. 116 M.S.P.R. 470 , ¶ 9-10. The Board applied the Stone analysis to conclude that these “portions of evidence relied upon by the agency in imposing the penalty” were material. Id. at ¶ 10-12 (emphasis added). Here, no new evidence was considered, and the reformulation of existing facts in the record was not material for the reasons discussed above. In Jenkins , the deciding official relied on an offense from the agency’s table of penalties different from the offenses charged in the notice of proposed re moval. 118 M.S.P.R. 161 , ¶ 9. While this did not introduce new evidence, it did introduce a new charge, apparently central to the deciding official’s decision, that the appellant was not on notice of. Id. at ¶ 12. In both Lopes and Jenkins , the aggravating factor stemmed from information not provided to the appellant. Here, by contrast, the proposal letter put the appellant on notic e of both the charges and of what made her conduct particularly problematic. That the 7 problematic nature of the conduct would constitute an aggravating factor was implicit in the notice. ¶12 Even if the ex parte communication is not sufficiently substantial to rise to the level of a due process violation, then “the Board [is] required to run a harm[ful] error analysis to determine whether the procedural error require[s] reversal.” Ward , 634 F.3d at 1281; see 5 U.S.C. § 7701 (c)(2)(A). Harmful error is an error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would h ave reached in the absence or cure of the error. Ward , 634 F.3d at 1281; 5 C.F.R. § 1201.56 (c)(3). ¶13 Here, the fact that the proposing official’s Douglas analysis was provided to the deciding official and not the appellant was clearly an error. As the Federal Circuit noted in Ward : “[I]t is a procedural error, in violation of 5 C.F.R. § 752.404 (f), for ‘an agency to rely on matters affecting the penalty it imposes without including those matters in the proposal notice’” (citations omitted). Ward , 634 F.3d at 1281. That the deciding official cited in his decision letter “the aggravating factors considered by the proposing official in determining an appropriate penalty” —information not provided to the appellant— makes clear the error. IAF, Tab 1 at 12, Tab 5 at 6-12. However, I believe such error was harmless given that the ex parte work sheet contained no new and material information, the appellant was still on notice to answer all relevant charges against her, and the outcome would have been the same even without the ex parte communication. ¶14 Thus, I would affirm as modified the initial decision of the administrative judge, and uphold the appellant’s removal. /s/ Tristan L. Leavitt Member	KNOWLIN_TREDITH_H_DC_0752_17_0703_I_1_FINAL_ORDER_2003374.pdf	2023-02-15	null	DC-0752	NP
3,541	https://www.mspb.gov/decisions/nonprecedential/PATTILLO_DAVID_A_DE_0714_17_0395_I_1_FINAL_ORDER_2002436.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID A. PATTILLO, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0714 -17-0395 -I-1 DATE: February 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David A. Pattillo , Lake Waccamaw, North Carolina, pro se. Victoria Ryan Bennett , Esquire, Washington, D .C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Initial Appeal File, Tab 50, 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on January 12, 2023, and by the agency on January 17, 2023. PFR File, Tab 17 at 7. The document provides, amon g 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 a greement 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 addi tion, 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 f inding 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 17 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 it s 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 1201.11 3 (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 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. 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 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 5 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to t he EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other p rotected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohib ited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circui t or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington , D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law 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 contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PATTILLO_DAVID_A_DE_0714_17_0395_I_1_FINAL_ORDER_2002436.pdf	2023-02-14	null	DE-0714	NP
3,542	https://www.mspb.gov/decisions/nonprecedential/DARBY_BEVERLY_AT_0714_19_0260_I_1_FINAL_ORDER_2002485.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BEVERLY DARBY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -19-0260 -I-1 DATE: February 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Beverly Darby , Jackson, Mississippi, pro se. Linda Fleck and Raquel Jones , New Orleans, Louisiana, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has petitioned for review of the June 17, 2019 initial decision in this appea l. Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 19 , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Initial Decision . For the reasons set forth below, we DISMISS the appeal as settled . ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on January 25, 2023, and by the agency on January 24, 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 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 t he 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 mat ter 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 6 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 circumstanc es, and we accept the settlement agreement into the record for enforcement purposes. 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 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. 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 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 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 particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of App eals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services prov ided by any attorney nor warrants that any attorney will accept representation in a given case. (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 ac tion that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decis ion. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: 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: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If yo u submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 205 07 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 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). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	DARBY_BEVERLY_AT_0714_19_0260_I_1_FINAL_ORDER_2002485.pdf	2023-02-14	null	AT-0714	NP
3,543	https://www.mspb.gov/decisions/nonprecedential/BARNES_ELIZABETH_PARKER_DC_0432_15_1013_I_1_REMAND_ORDER_2002509.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ELIZABETH PARKER BAR NES, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0432 -15-1013 -I-1 DATE: February 14, 2023 THIS ORDER IS NONPRECEDENTIAL1 Elizabeth Parker Barnes , Vinton, Virginia, pro se. Mark R. Higgins , Norfolk, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellan t has filed a petition for review of the initial decision, which sustained her removal based on unacceptable performance pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal to the Washington 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential v alue; 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 Boa rd’s case law. See 5 C.F.R. § 1201.117 (c). 2 Regional Office for further adjudication consistent with Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND ¶2 The appellant encumbered the position of Architect, GS -12. Initial Appeal File (IAF), Tab 16 at 85 -90. For the period ending October 31, 2013, the agency rated her performance as “needs improvement ,” id. at 57. Thereafter, the agency found her work on a particular project to be unsatisfactory , id. at 68, 70 , and advised her that her performance on certa in of her objectives2 needed improvement and that she would be placed on a performance improvement plan (PIP) , id. at 70. At the end of January 2014, t he appellant was on sick leave and then on other types of leave until she returned to duty on May 29, 20 14, under a reasonable accommodation arrangement allowing her to telework 4 days a week, later reduced to 3 days a week. IAF, Tab 15 at 69. For the period November 1, 2013 to August 15, 2014, but excluding the time she was on leave, the agency rated the appellant’s performance as failing in a number of her objectives. IAF, Tab 43 at 4 -10. ¶3 On October 10, 2014, the appellant’s supervisor notifi ed her that she was not performing her duties at an acce ptable level and that she was being placed on a 60 -day PIP to help her improve her performance. Id. at 24 -33. The supervisor set forth six objectives in which he indicated that the appellant’s performance needed to improve ; Technical Man agement, Responsi bility/Accountability, Working Relationships, Communication, Be Aware, and Working Within the Project Management Best Practices as a Project Delivery Team Member . As to each, the supervisor set forth the observed issue s with the appellant’s performance, a nd explained what she must do to improve . Id. The supervisor stated that he would m eet with the appellant weekly to discuss her responsibilities 2 These “objectives” correspond to critical elements, as set forth in 5 C.F. R. § 432.103 (b). 3 under the listed objectives and to address deficiencies , that the meetings would be documented, that he would review the appellant’s work, “TEE -UP”/mock up drawings, work breakdown struc tures that would be used for listing task assignments as necessary , and that he would attend as many project team and individual meetings as possible to view her performance in va rious settings , id. at 32. On December 10, 2014, the agency advise d the appellant that, although she had shown some improvement, she was still failing in the six objectives, and that the PIP would be extended until January 22, 2015. IAF, Tab 15 at 9 -12. ¶4 On January 22, 2015, the appellant’s supervisor proposed her removal for Failure during Performance Improvement Period ; specifically, for failing in h er objectives, with the exception of the Be Aware objective . IAF, Tab 12 at 82 -90. After receiving the appellant’s written reply, id. at 64 -71, the Deputy Division Chief requested clarification from the appellant’s supervisor on certain issues , after which the Deputy Division Chief provided to the appellant the information he had received along with a new n otice of proposed removal , including an additional opportunity to reply , id. at 52 -53. Thereafter , the Chief issued a letter of decision notifying the appellant that she was removed from her position , id. at 39-43, 36. ¶5 The appellant challenged the action by filing a timely formal complaint of discrimination in which she alleged that the agency’s action was due to discrimination because of sex, age, and disability, as well as retaliation for prior equal employment opportu nity (EEO) activity. Id. at 21 -34. When 120 days had passed without a final decision by the agency, the appellant filed a Board appeal , IAF, Tab 1 , in which she argued that the PIP and her performance standards were invalid and renewed her affirmative de fenses , id. at 6. She requested a hearing , id. at 2. During the processing of the appeal, the appellant added a claim that the agency’s action was also in retaliation for her protected whistleblowing activity. IAF, Tab 52 at 2. 4 ¶6 Thereafter, the administ rative judge issued an initial decision.3 IAF, Tab 62, Initial Decision (ID). He first found that the appellant did not challenge the Office of Personnel Management (OPM) ’s approval of the agency’s performance appraisal system and that therefore that mat ter was not at issue in the appeal.4 ID at 4 n.4. The administrative judge next examined the appellant’s performance standards , IAF, Tab 16 at 58 -62, finding that the agency proved by substantial evidence that they were valid in that they we re neither impermissibly vague nor ambiguous, but rather reasonable and attainable, and that they were clearly communicated to the appellant ,5 ID at 4 -10. The administrative judge then found that the agency pr oved by substantial evidence that the appellant was prov ided a reasonable opportunity to demonstrate acceptable performance. ID at 10-15. Specifically, h e found, considering the nature of the duties and responsibilities of the appellant’s position as a n architect, that the 102 days she had between October 10, 2014 and January 20, 2015 , was a reasonable amount of time in which to show sufficient improvement, that she worked under a detailed PIP, and that she was afforded considerable written feedback on her work and weekly meetings to prov ide assistance. ID at 15. The administrative judge the n considered the appellant’s performance during the PIP. ID at 15 -17. Relying on 3 The administrative judge found that the appellant filed her appeal after the issuance of a Final Agency Decision (FAD) on her EEO complaint. ID at 1 n. 1, 2. However , there is no indication that the agency issued a FAD. Rather, the appellant timely filed her appeal when the agency had not issued a FAD within 120 days. 5 C.F.R. § 1201.154 (b)(2). Any such error by the administrative judge, however, did not prejudi ce the appellant’s substantive rights . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). 4 The agency did, however, sub mit evidence that OPM approved its performance appraisal system. IAF, Tab 12 at 7. 5 To the extent that the administrative judge considered in his analysis the validity of the appellant’s performance standards under the Be Aware objective, he need not have done so since the proposing official found that the appellant’s performance under t hat objective during the PIP was acceptable. IAF, Tab 12 at 89. However, any such error did not prejudice the appellant’s substantive rights. Panter , 22 M.S.P.R. at 282. 5 what he considered the credible and probative testimony of the appellant’s supervisor, the administrative judge found that the appellant failed to complete either of the two projects she was assigned during the PIP, and that she exhibited rude and impolite behavior toward other members of the architectural section. ID at 16. The administrative judge concluded that the agency established by substantial evidence that the appellant’s performance in the five objectives was unacceptable. ID at 17. The administrative judge then addressed the appellant’s affirmative defenses. He found that she failed to establish her claims of disability discr imination, ID at 19 -22, age or sex discrimination, ID at 23 -25, retaliation for her protected EEO activity , ID at 25 -29, and retaliation for protected whistleblowing activity , ID at 29 -31. Accordingly, the administrative judge affirmed the agency’s action . ID at 1, 31 -32. ¶7 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 4, the agency has filed a response, PFR File, Tab 5, and t he appellant has filed a reply, PFR File, Tab 7. ANALYSIS ¶8 In her petition for review, t he appell ant has chosen to address her concerns with the initial decision by presenting “response s” to its individual paragraphs, beginning with paragraph 1 of the Analysis and Findings section and continuing through paragraph 110, which occurs partway through the administrative judge’s analysis of the appellant’s claim of discrimination based on age and sex. PFR File, Tab 1 at 7 -31. Some of these “responses” are simply disagreements with specific factual findings in the initial decision that have not been shown t o be material to the disposition of the appeal. We have not addressed these and other such “responses” because they do not meet the Board’s criteria for granting a petition for review. 5 C.F.R. § 1201.115 . However, in order to facilitate our analysis of the appellant’s petition for review , we have group ed some of her “responses” t o the extent she has raised valid objections to the initial decision . 6 ¶9 As noted, consistent with the Federal Circuit’s decision in Santos , 990 F .3d at 1360 -63, we are remanding this appeal for further adjudication. In Santos , the court held for the first time that, in addition to the elements of a chapter 43 case set forth by the administrative judge, an agency must also show that the initiation of a PIP was justified by the appellant ’s unacceptable performance before the PIP. Id. Prior to addressing the remand, we address the administrative judge’s findings on the elements of a chapter 43 appeal as they exist ed at the time of the initial decision , the findings regarding the appellant’s affirmative defenses, and the appellant’s arguments on review. The appellant failed to show that the administrative judge erred , under the law in effect at the time, in finding that the agency satisfied its burden to prove that the appellant’s performance was unacce ptable. ¶10 At the time the initial decision was issued, the Board’s case law stated that, in a performance -based action under 5 U.S.C. chapter 43, an agency must establish by substantial evidence that: (1) OPM approved its performance appraisal system; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are vali d under 5 U.S.C. § 4302 (c)(1); (4) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to improve; and (5) the a ppellant’s performance remained unacceptable in at least one critical element. White v Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013). As set forth below, we affirm the administrative judge ’s findings as to each of these elements. ¶11 On review, t he appellant challenges the administrative judge’s finding that the agency proved that her performance standards were valid , argui ng that, during the PIP, she was required to perform the duties of “another position,” that of Design Team Leader (DTL) in addition to her normal duties as a Lead Design Architect (LDA) . PFR File, Tab 4 at 8 -11, 13 -14, 16 , 21 . The appellant acknowledges, however, that this is not an argument she raised below. PFR File, 7 Tab 7 at 6. In fact, she states that she was not aware, even at the hearing, that, in her view, her performance standards required her to combine the duties and responsibilities of the DT L and the LDA positions , and that it was not until she read the initial decision that “it occurred to [her] that it would be prudent to re-examine the actual performance criteria [her supervisor] had set out rather than just rely on his characterization of it in court. ” Id. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previou sly available despite the party’ s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). Because the appellant has not made such a showing, we have not considered this claim. ¶12 The B oard will defer to managerial discretion in determining what agency employees must do to perform acceptably in their posit ions when , as here, the agency has shown that the performance standards, to the maximum extent feasible, permit the accurate evaluatio n of job performance on the basis of objective criteria related to the job in question and are reasonable, realistic, attainable, and clearly stated in writing. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 29 (2010). Agencies are entitled to use their managerial discretion in establishing the performance standards by which an employee’s performance is to be measured. Thomp son v. Department of the Navy , 89 M.S.P.R. 188, ¶ 5 (2001). ¶13 In finding th at th e appellant’s performance standards were valid and properly communicated to her, the administrative judge relied upon the testimony of the appellant’s supervisor to the effect that all architects with the agency have the same performance elements and standards, that the PIP notified her specifically of what she had to do to bring her performance up to the required level and gave specific instructions for behaviors that would allow for successful performance, and that she appeared to understand the objectives when he discussed them with h er. Hearing Compact Disc (HCD ) I (testimony of the 8 appellant’s supervisor); ID at 10. Our review of the performance standards supports the appellant’s supervisor ’s testimony regarding their reasonableness and attainability. IAF, Tab 16 at 58 -62. Beyond her mere disagreement with the administrative judge’s findings , the appellant has not shown that the administrative judge erred in finding that the agency proved by substantial evidence that her performance standards were valid and fairly communicated to her. ¶14 The appellant also challenges the administrative judge’s finding that the agency proved by substantial evidence that it afforded her a reasonable opportunity to improve her performance. PFR File, Tab 4 at 20-22. In determining whether an agency ha s afforded an employee a reasonable opportunity to demonstrate acceptable performance, relevant factors include the nature of the duties and responsibilities of the employee’s position, the performance deficiencies involved, and the amount of time which is sufficient to provide the employee with an opportunity to demonstrate acceptable performance. Lee, 115 M.S.P.R. 533, ¶ 32. ¶15 The appellan t argues that her supervisor “sabotaged her projects as a pretext to give her a poor performance evaluation ,” PFR File, Tab 4 at 20 , and that she had no opportunity to improve before the evaluation and/or PIP meeting, id. at 16 . However, the performance evaluation to which she refers predated the PIP by at least 60 days , IAF, Tab 43 at 4 -10, and it therefore had no bearing on the reasonableness of the opportunity to improve that began on October 10, 2014. Id. at 24 -33.6 The appellant also contends that, at PIP meetings, her supervisor provided no guidance on how she should proceed. PFR File, Tab 4 at 20. Her supervisor , however, recalled that the appellant reacted negatively to his guidance. HCD I (testimony of the appellant’s supervisor). The appell ant also challenges the administrative judge’s findings as to the roof project she was 6 This argument may, however, be relevant to the issues before the administrative judge on remand regarding the appellant’s pre -PIP performance. 9 assigned during the PIP, arguing that she disagreed with her supervisor regarding what needed to be done , and that the disagreement caused friction between her coworkers and her . PFR File, Tab 4 at 21 -22. ¶16 Here, the appellant’s initial 60 -day PIP was extended for an additional 6 weeks. IAF, Tab 15 at 9 -12. During that lengthy time, the appellant’s supervisor provided her considerable written feedback, IAF, Tab 1 4, and met with her weekly to discuss her progress on her assigned tasks. The administrative judge considered the appellant’s claims, ID at 13 -15, but found, based on the record as a whole, that the agency proved by substantial evidence that it afforded the appellant not only a reasonable amount of time (102 days) but also an otherwise reasonable opportu nity to improve her performance, ID at 10-15. Bearing in mind that the agency need only prove the elements of its case by substantial evidence,7 5 C.F.R. § 1201.56 (b)(1) (i), we find that t he appellan t’s mere disagreement with the administrative judge’s findings in this regard does not provide a basis for us to disturb them. ¶17 Next , the appellant challenges the administrative judge’s finding that the agency proved by substantial evidence that her performance was unacceptable. PFR File, Tab 4 at 23 -28. For example, she alleges that details surrounding the “Ft. Gordon DFAC project 65% submittal ” caused delays that were beyond her control. However, the details she describes all occurred well before the PIP period. Id. She asserts that certain of her supervisor’s statements regarding her work assignments are “inaccurate” and claims th at she completed them , but she has pointed to no evidence that supports her assertion. Id. at 28. The appellant also disputes the testimony of her supervisor that she exhibited rude and impolite behavior toward other members of the architectural secti on, arguing that he “did 7 Substantial evidence is defined as that degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. It is a lower standard of proof than preponderant evidence. 5 C.F.R . § 1201.4 (p). 10 nothing to stop [] co -workers from yelling in [her] face,” id., but, again, she has pointed to no evidence that supports her claim. ¶18 In finding that the agency proved by substantial evidence that the appellant’s performance was unacc eptable under the five objectives during the PIP, as extended, the administrative judge correctly found that the substantial evidence standard does not require an agency to produce evidence that is more persuasive than that presented by the appellant. Leonard v. Department of Defense , 82 M.S.P.R. 597 , ¶ 5 (1999); ID at 17. The administrative judge considered not only the testim ony of the appellant’s supervisor , which he found credible and probative , HCD I (testimony of the appellant’s supervisor); ID at 15-17, but also the appellant’s testimony , which he found, in fact, confirmed many of the communication difficulties observed b y her supervisor and the fact that she was unable to resolve them, and that it also highlighted her inability to deal with changing deadlines or coordinate assignments with other team members , ID at 17. We have considered the appellant’s arguments on revi ew, but discern no reason to weigh the evidence or substitute our assessment of the record evidence for that of the administrative judge. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to disturb the admin istrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Dep artment of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same); Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002) ( holding that t he Board may overturn credibility determinations only when it has “sufficiently sound” reasons for doing so). We find that t he appellant’s mere disagreement with the administrative judge’s findings and credibility determinations does not warrant full review of the record by the Board. Gager v. Department of Commerce , 99 M.S.P.R. 216 , ¶ 5 (2005); Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133-34 (1980), review denied , 669 F.2d 613 (9th Cir. 1982) (per curiam). 11 The appellant did not show that the admi nistrative judge erred in finding that she failed to establish her affirmative defenses. ¶19 Next , the appellant challenges on review the administrative judge’s findings that she failed to establish that her removal was due to discrimination based on disabilit y,8 under the theories of denial of reasonable accommodation and disparate treatment . PFR File, Tab 4 at 28-31. An appellant may establish a disability discrimination claim based on a failure to accommodate by showing that (1) she is a disabled person; (2) the action appealed was based on her disability; and (3) to the extent possible, there was a reason able accommodation under which s he believes she could perform the essential duties of her position. Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 35 (2016) , clarified by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-24. ¶20 The appellant challenges the administrative judge’s finding that her original request to telework was unrelated to any issue of reasonable accommodation . PFR File, Tab 4 at 28. The administrative judge further found, however, and the appellant does not dispute, that she did later request to telework as a reasonable accommodation for her disability, and that the agency granted her request, first allowing her to telework 4 days a week, although later reducing the number of days to 3, an arrangement that was in place for the duration of the PIP, as extended. ID at 19 -21. For the same reason, t he appellant’s claim, even if true, that the accommodation process took longer than usual, PFR File, Tab 4 at 25, does not establish error in the administrative judge’s findings and conclusion . The appellant also challenges the administrative judge’s recitation of the testimony of the Head of the Civilian Personn el Office regarding the appellant’s 8 The nature of the appellant’s claimed disability is not addressed in the initial decision, ID at 17 -23, or in any of the pleadings on review, PFR File, Tabs 4, 6 -7. Nonetheless, in her EEO complaint , which gave rise to this appeal, the appellant claimed mental disability, “Anxiety, [Post -Traumatic Stress Disorder ],” and physical disability, “illness.” IAF, Tab 31 at 20. 12 request to be a leave donor recipient , and the resultant confusion and delay , acknowledged by the agency, resulting from its use of the appellant’s middle name as her last name. Id. at 29 -30. The appellant does not sug gest, however, that the matter remained unresolved during the PIP. Id. The appellant also disputes the administrative judge’s finding that telework was not typically permitted for architects , id. at 30 , but, e ven if the appellant is correct in her assert ion that telework was typically granted to architects on an ad -hoc basis, it does not advance her discrimination claim because the agency granted her requested reasonable accommodation , which was in effect during the pendency of the PIP. Beyond her mere d isagreement , the appellant has not shown that the administrative judge erred in fin ding that, assuming the appellant is disabled , she failed to establish that her removal was based on a failure to accommodate. ID at 22-23. ¶21 The appellant also challenges the administrative judge’s finding that she did not establish her claim of disparate treatment based on disability . Here, t he appellant acknowledges that no other architects in the archi tectural section were removed during her tenure . Further , although she refers to a particular employee in an effort to show that “I was singled out for removal,” she does not suggest that that employee had performance issues or was otherwise similarly sit uated to her. PFR File, Tab 4 at 30 -31; Davi s v. U.S. Postal Service , 120 M.S.P.R. 122, ¶ 16 (2013) . Nor has the appellant show n that her disability was a motivating factor or but -for cause in her removal. Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶ 33 (2016). Therefore , the appellant has failed to show that the administrative judge erred in finding that she did not establish her claim of disparate treatment based on her disability. See Pridgen, 2022 MSPB 31 , ¶ 40. ¶22 The appellant does not, on review, challenge with any spe cific claim of error the administrative judge’s finding that she failed to establish that the agency’s ac tion was based on discrimination due to age or s ex. PFR File, Tab 4 at 31. The administrative judge applied the burden -shifting analysis under 13 McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 -04 (1973), finding that the appellant’s anecdotal recollections9 failed to show employment decisions personal to her that were ba sed on her sex or age and that, based on the record as a whole, she failed to present evidence that similarly situated coworkers not in her protected class who suffered from failing performance were treated more favorably. The administrative judge found n o evidence that the decision to remove the appellant was motivated by animus toward her due to her age or sex, and that the agency’s explanation for the action, the appellant’s failure to meet her performance requirements, was not shown to be false or some façade to hide an improper motive. ID at 23 -25. We find no reason to disturb the administrative judge’s decision, as it is consistent with our recent holding in Pridgen, 2022 MSPB 31 , ¶ 25 . ¶23 Finally, the appellant argues that certain evidence was available but was not presented due to the incompetence of her non -attorney representative, his unfamiliarity with her case, and his focus on irrelevant issues . PFR File, Tab 4 at 6, Tab 7 at 5. The administrativ e judge marked proffered timely filed exhibits for identification, but stated that they “must be introduced at the hearing,” at which time he would rule on thei r admissibility. IAF, Tab 52. To the extent the appellant ’s representative failed to in troduce any such exhibits, an appellant is responsible for the errors of h er chosen representative . Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). The appellant appeals to the Board for consideration on the basis that she is now pro se on petition for review . PFR File, Tab 7 at 4. While i t is true that pro se appellants are not required to plead issues with the precision of an attorney in a judicial proceeding , Gilliam v. Office of Perso nnel Management , 91 M.S.P.R. 352, ¶ 7 (2002) , the appellant in this case 9 For example, the administrative judge considered the appellant’s claims that she overheard her supervisor tell anot her employee that she was being selected to do certain work because she was “young and energetic,” that he thought younger people were more adept at learning a 3 -D modeling program, and that the appellant was not often asked to socialize with other male en gineers. ID at 24 -25. 14 was represented, initially by counsel, IAF, Tab 1, and th ereafter by a non -attorney representative, IAF, Tab 26, during the processing of her appeal, up to and including at the hearing. In any event, the consideration afforded a pro se appellant does not extend to a less strict interpretation of the law.10 Remand is necessary to afford the parties an opportunity to submit evidence and argument regarding whether the appellant’s placement on a PIP was proper. ¶24 As noted, d uring the pendency of the petition for review in this case, the United States Court for th e Federal Circuit issued Santos , 990 F.3d at 1360 -63, in which it held that, in addition to the five elements of the agency’s case, as set forth above, the agency must also justify the initiation of a PIP by proving by substantial evidence that the employe e’s performance was unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Lee v. Department of Veterans Affairs , 2022 MSP B 11, ¶ 16. Although the record in this case already contains evidence suggesting that the appellant’s performance prior to the initiation of the PIP was un acceptable, IAF, Tab 16 at 68, 70, Tab 43 at 4 -10, we remand the appeal to give the parties the opportunity to present argument and additional evidence on whether the appellant’s performance during the period leading up to the PIP was unacc eptable in one o r more critical elements , see Lee , 2022 MSP B 11, ¶¶ 15-17. On remand, the administrative judge shall accept 10 With her petition, the appellant has submitted 70 additional pages of documents. PFR File, Tab 4 at 70 -139. Some are not material, id. at 70 -71, and others are not new, id. at 88 -97. The Board generally will not consider evidenc e 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). In addition, 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 f rom that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). Absent any such showing by the appellant, we have n ot considered these documents. Other documents the appellant has submitted on review are part of the record below and do not therefore constitute new evidence, PFR File, Tab 4 at 73 -80, 98 -123, 125 -39. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) . 15 argument and evidence on this issue, and shall hold a supplemental hearing if appropriate. Id., ¶ 17. ¶25 The administrative judge shall then issue a new initial decision consistent with Santos. See Lee, 2022 MSPB 11 , ¶ 17. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporat e in the remand initial decision his prior findings on the other elements of the agency’s case , and the appellant’s affirmative defenses , as modified herein to apply the proper standard . See id. However, regardless of whether the agency meets its burden, if the argument or evidence on remand regarding the appellant’s pre-PIP performance affects the administrative judge’s analysis of the appellant’s affirmative defenses, the administrative judge should address such argument or evidence in the remand initia l decision. See Spithaler v . Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge ’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). ORDER ¶26 For the reasons discussed above, we remand this case to the Washington Regional Office for further adjudication in accordance with this Remand Order . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BARNES_ELIZABETH_PARKER_DC_0432_15_1013_I_1_REMAND_ORDER_2002509.pdf	2023-02-14	null	DC-0432	NP
3,544	https://www.mspb.gov/decisions/nonprecedential/SANDOVAL_CYNTHIA_DA_0752_22_0102_I_1_FINAL_ORDER_2002634.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CYNTHIA SANDOVAL, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DA-0752 -22-0102 -I-1 DATE: February 14, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Willis , Esquire, Brownsville, Texas, for the appellant. Roberto M. Garcia , Esquire, Edinburg, Texas, for the appellant. Ashley Denise Mariscal , Kevin W. Gotfredson , and Shae Weathersbee , Edinburg, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal. On petition for review, the appellant argues 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 that the administrative judge erred in her c redibility analysis and consequent finding of fact, which was material to the agency’s lack of candor charge. 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 av ailable when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant challenges the administrative judge’s finding of fact that the appellant, a supervisor, gave permission to a Customs and Border Protection Officer to record surveillance footage on his personal cell phone. Petition for Review File, Tab 1. Her petition contains specific citations to alleged inconsistencies in the record in support of her contention that the a dministrative judge erred in crediting other witnesses’ testimony over the appellant’s. Id. We find no error in the administrative judge’s credibility findings and consequent finding of fact. She devoted a substantial portion of the initial decision to her credibility analysis, which included the demeanor of the appellant and other witnesses at the hearing. Initial Appeal File, Tab 31, Initial Decision. Affording due deference to the administrative judge, we find that the minor inconsistencies identifi ed by the appellant are insufficient to overcome strength of the administrative judge’s reasoning and the weight of the evidence. See Haebe v. 3 Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v . Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a genera l rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision . 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for t he Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by an y attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appro priate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Prote ction Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must 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 ot her security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial revi ew either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SANDOVAL_CYNTHIA_DA_0752_22_0102_I_1_FINAL_ORDER_2002634.pdf	2023-02-14	null	DA-0752	NP
3,545	https://www.mspb.gov/decisions/nonprecedential/PABLOS_VAZIRA_CARLA_M_SF_0432_16_0226_I_1_REMAND_ORDER_2002720.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARLA M. PABLOS -VAZIRA, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER SF-0432 -16-0226 -I-1 DATE: February 14, 2023 THIS ORDER IS NONPRECEDENTIAL1 Allen A. Shoikhetbrod , Esquire, Albany, New York, for the appellant. Asim Hemant Modi , Esquire, and Heather Moss , Esquire, San Francisco, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her reduction in grade for unacceptable performance under 5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the appellant’s petition 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 for review and REMAND the case to the Western Regional O ffice for further adjudication consistent with Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND ¶2 The appellant served as a Paralegal Specialist, GS -0950 -12, in the agency’s Office of Disability Adjudication and Review in Los An geles, California, from April 2001 until her reduction in grade to a Legal Assistant, Senior Case Technician, GS -0986 -08. Initial Appeal File (IAF), Tab 5 at 93 -100, Tab 6 at 8. In November 2013, the agency issued the appellant a performance plan for the 2014 rating period. IAF, Tab 7 at 122 -24. In March 2014, the appellant’s supervisor issued her a Performance Assistance plan to improve her performance in two critical elements, Demonstrates Job Knowledge and Achieves Business Results, which lasted for 30 days. Id. at 113 -20. In April 2014, the appellant’s supervisor informed her that her performance continued to need improvement, and in May 2014, the appellant’s supervisor issued her an Opportunity to Perform Successfully plan in the critical elements of Demonstrates Job Knowledge and Achieves Business Results, which was effective from May 12 to September 23, 2014. Id. at 68-69, 80 -91. In November 2014, the appellant’s supervisor rated her performance for 2014 as unsuccessful. IAF, Tab 6 at 170-72. ¶3 On July 31, 2015, the appellant’s supervisor proposed her reduction in grade to a Legal Assistant, Senior Case Technician, for unacceptable performance in the critical elements of Demonstrates Job Knowledge and Achieves Business Results. Id. at 7-24. O n September 17, 2015, the appellant provided a written reply to the proposed reduction in grade. IAF, Tab 5 at 112 -44. On October 28, 2015, the deciding official issued a memorandum which specified the grade and step to which the appellant would be demot ed, GS -0986 -08, Step 10 ; clarif ied that the appellant had completed three out of 13 decisions within management -assigned timeframes ; and provided the appellant with an opportunity 3 to reply to the memorandum. Id. at 110 -11. The appellant did not reply. On December 11, 2015, the deciding official issued a decision sustaining the proposed reduction in grade, effective December 13, 2015. Id. at 94 -100. ¶4 The appellant timely filed an appeal in which she challenged the reduction in grade and requested a hearing. IAF, Tab 1. Following a hearing, the administrative judge issued an initial decision affirming the agency’s action. IAF, Tab 60, Initial Decision (ID). Specifically, the administrative judge found that t he agency proved by substantial evidence that, despite a reasonable opportunity to improve, the appellant’s performance was unacceptable in both critical elements at issue, the appellant did not prove her affirmative defenses of discrimination on the bases of age and sex, and the agency’s delay in issuing a decision following the issuance of the proposal to reduce the appellant in grade was not harmful. ID at 8 -34. ¶5 The appellant has timely filed a petition for review of the initial decision, and the agenc y has opposed the petition. Petition for Review (PFR) File, Tabs 3, 9. The appellant has filed a reply to the agency’s opposition. PFR File, Tab 10. DISCUSSION OF ARGUME NTS ON REVIEW In light of the court’s decision in Santos , we remand this appeal to g ive the parties an opportunity to present evidence and argument regarding whether the appellant’s performance during the period leading up to the performance improvement plan was unacceptable. ¶6 At the time the initial decision was issued, the Board’s cas e law stated that, in a performance -based action under 5 U.S.C. chapter 43, an agency must establish by substantial evidence that: (1) the Office of Personnel Management (OPM) approved its performance appraisal system; (2) the agency communicated to the a ppellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302 (c)(1); (4) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to improve; 4 and (5) the appellant’s performance remained unacceptable in at least one critical element . White v. Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013).2 However, during the pendency of the petition for review in this case, the United States Court of Appeals for the Federal Circuit held in Santos , 990 F.3d at 1360 -61, that in addition to the five elements of the agency’s case set forth above, the agency m ust also justify the institution of a performance improvement plan (PIP) by proving by substantial evidence that the employee’s performance was unacceptable prior to the PIP.3 The Federal Circuit’s decision in Santos applies to all pending cases, includin g this one, regardless of when the events took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. We remand the appea l to give the parties the opportunity to present argument and additional evidence on whether the appellant’s performance during the period leading up to the PIP was unacceptable in one or more critical elements . See id., ¶¶ 15-17. ¶7 The administrative judge shall then issue a new initial decision consistent with Santos . See id. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate his prior findings on the other elements of the agency’s case and the appellant’s affirmative defenses in the remand initial decision , consistent with the findings below . See id. However, regardless of whether the agency meets its burden, if the argument or evidence on remand regarding the app ellant’s pre -PIP performance affects the 2 In his initial decision, the administrative judge set forth the standard as found in Belcher v. Department of the Air Force , 82 M.S.P.R. 230 , 232 -33 (1999) , and Greer v. Department of the Army , 79 M.S.P.R. 477 , 482 (1998) . ID at 7 -8. Although the standard is worded differently than the standard set forth in White , 120 M.S.P.R. 405 , ¶ 5, the administr ative judge explicitly addressed each element set forth in White in his initial decision. ID at 9-23. 3 While the agency called its plans the Performance Assistance plan and an Opportunity to Perform Successfully plan, because these plans were designed to improve the performance of an employee performing at an unacceptable level , these plans are considered PIPs. 5 administrative judge’s analysis of the appellant’s affirmative defenses, the administrative judge should address such argument or evidence in the remand initial decision. See Spithaler v. Office of Personnel Manage ment , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evid ence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). We affirm the administrative judge’s finding s that the agency warned the appe llant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to demonstrate acceptable performance, but her performance remained unacceptable in the two critical elements for which she was provided an oppor tunity to demonstrate acceptable performance. ¶8 On review, the appellant renews her arguments that the agency did not give her a reasonable opportunity to demonstrate acceptable performance because her supervisor assigned her complex cases, criticized her wo rk for “stylistic differences,” imposed time -consuming requirements for daily logs and meetings, failed to provide training, and denied her requests for overtime, credit hours, and telework.4 PFR File, Tab 3 at 22 -25. Upon review of the record, we agree with the administrative judge that the agency’s provision of extensive training, a mentor during the period the appellant was given to demonstrate acceptable performance, and written and oral feedback during the performance improvement 4 The appellant also argues that the deciding official testified that she rubberstamped the proposing official’s proposal to reduce the appellant in grade. PFR File, Tab 3 at 25. This argument mischaracterizes the deciding official’s testimony and is not relevant to whether the agency afforded the appellant a reasonable opportunity to demonstrate acceptable performance. Hearing Transcript, Volume 1 at 180 -221 (testimony of the deciding official). Although this argument raises a potential due process viol ation, the appellant did not provide evidence or argument to support her contention on review, and our review of the record reflects that the deciding official considered the appellant’s reply and the documents supporting the proposed reduction in grade, t hus the appellant received a meaningful opportunity to respond to the proposed action. See Mathews v. Eldridge , 424 U.S. 319 , 333 (1976) (statin g that due process requires, at a minimum, that an employee be given the opportunity to be heard “at a meaningful time and in a meaningful manner”). 6 period of 120 days a nd an extension of 2 weeks, was sufficient to afford the appellant a reasonable opportunity to demonstrate acceptable performance. ID at 13-16; see, e.g. , Towne v. Department of the Air Force , 120 M.S.P.R. 239 , ¶ 20 (2013) (finding that the agency afforded the appellant a reasonable opportunity to improve when her supervisor provided detailed written feedback and regularly met with her during the performance improvement period). ¶9 We have similarly considered the appellant’s renewed arguments that the agency failed to prove that her performance remained unacceptable because her supervisor assigned her complex decisions that were more suited for GS -13 attorneys, her supervisor’s criticisms of her work were stylistic and not based on legal sufficiency, and the agreement rate of the agency’s appeals counsel with her decisions demon strated that her work was legally sufficient. PFR File, Tab 3 at 19-22. However, our review of the appellant’s draft decisions, markups of those decisions by her supervisor, and feedback memoranda from her supervisor reflects that the agency showed by su bstantial evidence that the appellant’s performance remained unacceptable in the critical elements at issue.5 IAF, Tab 6 at 11-20, Tab 7 at 27-79, Tabs 17-19, 23 -27; ID at 16-23. 5 On review , the appellant does not dispute the administrative judge’s findings that OPM approved the perfo rmance appraisal system utilized by the agency in this matter, that the agency communicated to the appellant the performance standards and critical elements of her position, and that the appellant’s performance standards were valid. We discern no reason t o disturb these findings, as the record reflects that the administrative judge considered the evidence as a whole and drew appropriate inferences from the evidence submitted. ID at 8 -13; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a w hole, 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). 7 We modify the initial decision to find that the agency did not rescind the July 31, 2015 notice of proposed reduction in grade by issuing an October 28, 2015 clarification memorandum; moreover, the administrative judge properly found that the delay in issuing the decision sustaining the reduction in grade was not harmful. ¶10 On rev iew, the appellant renews her argument, which the administrative judge did not address in the initial decision, that the agency’s October 28, 2015 memorandum constituted a new notice of proposed reduction in grade that effectively rescinded the July 31, 20 15 notice of proposed reduction in grade, and that the agency’s consideration of any evidence of her performance over 1 year prior to the October 28, 2015 notice warrants reversal.6 PFR File, Tab 3 at 13 -19. Pursuant to 5 U.S.C. § 4303 (c)(2)(A), a reduction in grade for unacceptable performance may be based only on instances of unacceptable performance that occurred within the 1 -year period ending on the date of the notice of the proposed action, and consideration of instances of unacceptable performance prior to that time period may constitute harmful procedural error. Addison v. Department of Health and Human Services , 46 M.S.P.R. 261 , 265, 267 n.3 (1990), aff’d , 945 F.2d 1184 (Fed. Cir. 1991) . The July 31, 2015 notice issued by the proposing official was 18 pages in length, laid out in detail the instances of the appellant’s unacceptable performance upon which the agency relied in proposing the action, notified the appellant of her right to r eply to the notice, and was accompanied by lengthy supporting documentation. IAF, Tab 6 at 7 -24. ¶11 In contrast, the October 28, 2015 memorandum was issued by the deciding official, was two pages in length, and contai ned two pieces of information: (1) it clarified the grade and step to which the appellant would be reduced, whereas the July 31, 2015 notice only indicated the position to which she was to be demoted; and (2) it clarified that three of 13 decisions were timely completed, whereas the 6 The appellant did not raise this argument until her hearing testimony and closing statement. Hearing Transcript, Volume 2 at 45 (testimony of the appellant), 55 (the appellant’s closing argument). 8 July 31, 2 015 notice stated that only two of 15 decisions were timely. IAF, Tab 5 at 110-11. The agency also provided the appellant with an opportunity to respond to this memorandum, but there is no indication that the agency intended to rescind and replace the Ju ly 31, 2015 notice. Id. Rather, the October 28, 2015 memorandum appears to have been intended to communicate to the appellant new information that the deciding official considered to rectify a potential due process deficiency. Cf. Stone v. Federal Depos it Insurance Corporation , 179 F.3d 1368 , 1376 (Fed. Cir. 1999) (holding that an employee’s constitutional due process guarantee of notice, both of the charges and of the employer’s evidence, and the opportunity to respond are undermined when a deciding official obtains new and material information through ex parte communications). Accordingly, to the extent the administrative judge erred in faili ng to address the appellant’s argument regarding the two memoranda, such error was not prejudicial to the appellant because the administrative judge properly considered the July 31, 2015 memorandum as the notice of proposed reduction in grade and reviewed the instances of unacceptable performance upon which the agency relied, which occurred within 1 year from the date of the notice. ID at 6 -7. ¶12 We also affirm the administrative judge’s finding that, although the agency failed to timely issue a decision su staining the reduction in grade, the 4 -month delay was not harmful, as the appellant has not shown that the delay affected the outcome of the performance action. ID at 32 -34; see Salter v. Department of the Treasury , 92 M.S.P.R. 355 , ¶¶ 6-8 (2002) (finding that the 13-month delay in the issuance of the decision was not harmful). We affirm the administrative judge’s finding that the appellant did not prove her affirmative defenses. ¶13 On review, the appellant reiterates her arguments that discrimination on the bases of age, sex, and parental status were motivating factors in her reducti on in grade. PFR File, Tab 3 at 25 -29. We do not consider her argument regarding discrimination on the basis of parental status because she withdrew this 9 affirmative defense during the proceedings below. IAF, Tab 30 at 8 -9. We have considered the appel lant’s remaining arguments, but we discern no basis upon which to disturb the administrative judge’s well -reasoned findings denying the appellant’s affirmative defenses of age and sex discrimination.7 ID at 23 -32; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) . ORDER ¶14 For the reasons discussed above, we REMAND this case to the Western Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 7 Because we discern no error with the administrative judge’s motivating factor analysis or conclusion regarding th e appellant’s discrimination and retaliation claim s, we do not reach the question of whether discrimination and/or retaliation was a “but f or” cause of the removal action. See Pridgen v.Office of Management and Budget , 2022 MSPB 31, ¶¶20 -25, 30 .	PABLOS_VAZIRA_CARLA_M_SF_0432_16_0226_I_1_REMAND_ORDER_2002720.pdf	2023-02-14	null	SF-0432	NP
3,546	https://www.mspb.gov/decisions/nonprecedential/SALAITA_CHARLIE_DC_0845_17_0108_I_1_FINAL_ORDER_2002023.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLIE SALAITA, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0845 -17-0108 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charlie Salaita , Midlothian, Virginia, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) . Generally, we grant petitions such as this one only in the following circumstances: the initial decision co ntains 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 on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the p etitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the fil ings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 In a reconsideration decision, OPM found that the appellant had been overpaid $284.70 in annuity benefits under the Federal Emp loyees ’ Retirement System and denied his request for waiver of recovery of the overpayment. Initial Appeal File (IAF), Tab 9 at 6 -9. OPM explained that this overpayment occurred because it overestimated the amount of the appellant ’s annuity when he retired and paid him the overestimated amount as interim payments between the date that he retired and the date that OPM calculated his proper annuity payment. Id. OPM explained further that interim payments to the appellant had not been reduced to account for his receipt of Social Security Administration Disability Insurance Benefits (SSADIB). Id. OPM set a collection schedule to recover the overpayment in nine monthly installments of $30 each and a final installment of $14.70. Id. at 8. ¶3 The appellant appeal ed to the Board. He challenged the reconsideration decision , arguing that OPM ’s calculation of his overpayment wa s erroneous because it made its calculation based on the assumption that he received SSADIB , 3 a benefit that he never received . IAF, Tab 1. He explained that, although he applied for disability benefits from the Social Security Administration , he did not receive such benefits because he applied after he was 62 years of age and was eligible for old -age Social Security benefits. Id. The appellant did not request a hearing. Id. The administrative judge found that, contrary to what OPM stated in its reconsideration decision, it had not based its overpayment calculation on the appellant ’s receipt of SSDIB benefits. IAF, Tab 16, Initial De cision (ID) at 5. The administrative judge relied on OPM ’s “Special Notice ” of overpayment that informed the appellant that the “gross interim payments paid to you exceed your actual earned annuity payable from the date of your retirement to the present. ” ID at 5; IAF, Tab 9 at 17 -19. ¶4 The administrative judge found further that , because OPM ’s calculations appear ed correct , and the appellant offered no evidence to indicate otherwise, OPM established the existence of the overpayment and its correct amount . ID at 5. Additionally, the administrative judge found that the appellant did not establish an entitlement to waiver of recovery of the overpayment amount. ID at 6-8. The administrative judge noted that the appellant never submitted a Financial Resour ces Questionnaire (FRQ) setting forth his monthly income and expenses, despite numerous opportunities to do so. ID at 7 -8. Thus, he found that the appellant was not entitled to a waiver of his overpayment . ID at 8. ¶5 In his petition for review, the appell ant asserts that the request for reconsideration form supplied by OPM contained a page for estimated monthly expenses that he completed and submitted with his request. Petition for Review (PFR) File, Tab 1. He argues that his submission was an FRQ and th at his completed FRQ is “somewhere at OPM. ” Id. at 1. OPM has responded in opposition to the petition for review. P FR File, Tab 4 . 4 DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly found that OPM proved that the appellant had received an overpayment. ¶6 OPM bears the burden of proving, by a preponderance of the evidence, the existence and amount of an annuity overpayment. Siefring v. Office of Personnel Management , 94 M.S.P.R. 547 , ¶ 3 (2003). In his petition, t he appellant does not contest the administrative judge ’s finding that OPM met its burden to prove the amount of the overpayment . He no longer argues that OPM ’s calculation of his overpayment was based on an erroneous assumption that he was receiving SSADIB. We thus agree with the administrative judge that OPM has met its burden of proof regarding the amount of the overpayment . The administrative judge pr operly found that the appellant failed to show that he is entitled to waiver of recovery of the overpayment. ¶7 On review, the appellant appears to be asserting that he is entitled to waiver of recovery of the overpayment or adjustment of the repayment schedu le based on financial hardship. PFR File, Tab 1. Recover y of an overpayment will be waived when the annuitant is without fault and recovery would be against equity and good co nscience. 5 U.S.C. § 8346 (b); 5 C.F.R. § 831.1401 . A recipient of an overpayment is without fault if he has performed no act of commission or omission that resulted in the overpayment. 5 C.F.R. § 831.1402 ; see Wright v. Office of Personnel Management , 105 M.S.P.R. 419 , ¶ 4 (2007). Recovery is against equity and good conscience when it would cause financial hardship, the annuitant can show that because of the overpayment he relinquished a valuable right or changed positions for the worse, or recovery cou ld be unconscionable under the circumstances. 5 C.F.R. § 831.1403 (a). ¶8 The appellant bears the burden of establishing his entitlement to a waiver by substantial evidence. 5 C.F.R. § 831.1407 (b); 5 C.F.R. § 1201.56 (b)(2 )(ii). Substantial evidence is defined as the degree of relevant evid ence that a reasonable person, c onsidering the record as a whole, might accept as adequate to 5 support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4 (p). ¶9 Here, we agree with the administrative judge that the appellant is without fault. The record contains no evidence to show that the appellant should have known that his interim annuity payments were erroneously calculated. Thus, he could be entitled to waiver of recovery of the overpayment based on a showing of financial hardship. To show that recovery of an annuity overpayment should be waived based on financial hardship, an appellant must prove that he needs substantially al l of his current income and liquid assets to meet current ordinary and necessary living expenses and liabilities. See 5 C.F.R. §§ 831.1404 , 831. 1405, 831. 1407(b). In analyzing a claim of financial hardship, t he administrative judge must compare monthly income and monthly expenses throughout the period during which collection is proposed. See Fusco v. Office of Personnel Management , 42 M.S.P.R. 501 , 506 (1989). Overpayment recipients often supply a comparison of income and expense s by submitting a n FRQ . ¶10 The appellant ’s assertion that he submitted personal financial hardship information to OPM is unavailing . In the record, t here is a blank copy of an FRQ as part of OPM ’s Policy Guidelines submitted as a part of OPM ’s response file. IAF, Tab 9 at 76 -79. There is nothing in OPM ’s response file , however, to support the appellant ’s assertion on petition for review that he submitted a completed FRQ or other evidence of his estimated monthly expenses to OPM. ¶11 Further, the appellant knew or should have known that he could submit evidence of financial hardship for consideration by the administrative judge. The administrative judge’s acknowledgment o rder informed the appellant that he could claim that collection of the overpayment would cause him financial hardship . IAF, Tab 2 at 10. It also informed him that, to establish such a claim, he must pro ve by substantial evidence that he need ed substantially all of his current income and liquid assets to meet current ordinary and necessary living expenses and liabilities , and that to establish such expenses and liabilities he 6 needed to provide specificall y identified information “supported by an affidavit and whatever documentary evidence” he possessed. Id. Notwithstanding being provided with this information, the appellant did not submit any evidence that collection of the overpayment would cause him fi nancial hardsh ip. Additionally, although the initial decision repeats much of the inf ormation provided in the acknowledgment o rder, the appellant on review states only the amount of his monthly income; he does not state the amount of his liquid assets or his current ordinary and necessary living expenses and liabilities. Under these circumstances, we find that the administrative judge properly found that the appellant failed to show that he is entitled to waiver of recovery of the overpayment on the basis of financial hardship. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 7 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 8 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 represe ntative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any require ment of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims 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 9 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law 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. 10 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petition ers and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SALAITA_CHARLIE_DC_0845_17_0108_I_1_FINAL_ORDER_2002023.pdf	2023-02-13	null	DC-0845	NP
3,547	https://www.mspb.gov/decisions/nonprecedential/FAULK_LOREAL_AT_0752_22_0016_I_1_FINAL_ORDER_2002038.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD L’OREAL FAULK, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -22-0016 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 L’Oreal Faulk , Montgomery, Alabama, pro se. Mary Bea Sellers , Esquire, Montgomery, Alabama, for the agency. Sophia E. Haynes , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal from Federal service pursuant to 5 U.S.C chapter 75 . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decisio n 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 cou rse 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 t he petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED to vacate the portion of the init ial decision finding that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of any perceived whistleblower disclosures , we AFFIRM the initial decision. ¶2 On petition for review, the appellant reasserts many of the same arguments that she raised before the administrative judge. Petition for Review (PFR) File, Tab 2 at 4. Additionally , she requests an audit to prove that other non -veteran employees, like the appellant, engaged in the same conduct of rec eiving medical treatment for which they were ineligible but were not similarly disciplined . Id. at 5. She further asserts that she was treated more severely than the doctors and pharmacists who provided treatment to her and were not disciplined . Id. at 4-5. As the administrative judge noted in the initial decision, the last psychiatrist who treat ed the appellant mistakenly believed that th e appellant was a veteran , and therefore , he did not knowingly provide care to an ineligible p erson . Initial Appeal File ( IAF), Tab 25 , Initial De cision (ID) at 5. Thus, the psychiatrist’s conduct is not the same or similar to the appellant’s misconduct . See Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 17 (stating that the Board 3 should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were tre ated disparately) . Regarding the appellant’s request for an audit, there is no evidence that the appellant sought this information from the agency while the case was in discovery before the administrative judge , and there is no evidence that she filed a m otion to compel this information from the agency . Finally, the appellant asserts in her petition for review that her former representative retained information relevant to her case. PFR File, Tab 2 at 4. We note that t he administrative judge ordered several extensions to the deadline for prehearing submissions and the hearing date due to issues with the appellant’s former representative and , at the prehearing conference, the appellant affirmed that she was prepared to mov e forward with this appeal. IAF, Tab 17 at 2, Tab 19 at 1 -3. In any event, the appellant has not identified the information that her former representative retained or explained how that information would require a different result on review . ¶3 On review, the appellant has not challenged the administrative judge’s finding that she failed to prove her affirmative defense of perceived whistleblower retaliation. ID at 10-13; PFR File, Tab 2 at 3 -6. The administrative judge found that the appellant failed to prove that the agency perceived her as a whistleblower and, in the alternative, the agency proved by clear and convincing evidence that the appellant would have been removed for misconduct regardless of whether she was perceived as a whistleblower . ID at 10-13. We agree that the appellant failed to prove that the agency perceived her as a whistleblower , and it is therefore unnecessary to decide whether the agency proved by clear and convincing evidence that it would have taken the same action in the abse nce of any perceived disclosures . See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014), aff’d , 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s findings concerning whether the agency met its clear and convincing 4 burden. Accordingly, we deny the appellant’s petition for review , and we affirm the initial decision as expres sly modified herein . NOTICE OF APPEAL RIG HTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of th is decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an a ction that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action wi th an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 6 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of 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.msp b.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept represent ation in a given case. Contact 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	FAULK_LOREAL_AT_0752_22_0016_I_1_FINAL_ORDER_2002038.pdf	2023-02-13	null	AT-0752	NP
3,548	https://www.mspb.gov/decisions/nonprecedential/SIDNEY_IVAN_DE_0752_14_0431_I_1_FINAL_ORDER_2002112.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD IVAN SIDNEY, JR., Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DE-0752 -14-0431 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey H. Jacobson , Esquire, Tu cson, Arizona, for the appellant. Lauren Bachtel and Toye Olarinde , Esquire , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, we grant petitions such as this one only in the 1 A nonprecedential order is one that t he Board has determined does not add significantly to the body of MSPB case 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 following circumstances: the initial decision co ntains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the p etitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the fi lings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final dec ision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was formerly employed by the agency as a Criminal Investigator with the Bureau of Indian Affairs Hopi Agency in Keams Canyon, Navajo, Arizona. Initial Appeal File (IAF), Tab 6 at 18 . His primary job duties included investigating crimes for the purpose of prosecution in the U.S. District Court for the District of Arizona and the Hopi Indian Tribal Court. Hearing Transcript (HT ) at 92 -93 (June 29, 2015) (testimony of the appellant). On March 12, 2014, the agency proposed his removal based on two charges of failure to meet a condition of employment and misconduct. IAF, Tab 6, Subtab 4(e). On June 2 , 2014, the agency sustained the charges and removed the appellant effective that same day. Id., Subtab 4(b) . The appellant filed a Board appeal disputing the charges and raised affirmative defense s of a due process violation and harmful error . IAF, Tab 1 at 4, Tab 47. After holdi ng a hearing, the administrative judge issued an initial decision, sustaining the appellant’s removal. IAF, Tab 5 1, Initial Decision (ID). The administrative judge found that the 3 agency proved both of its charges and that the penalty of removal was reaso nable. ID at 10 -18. The administrative judge also found that the appellant failed to prove his affirmative defenses. ID at 19-22. ¶3 The appellant has filed a petition for review. Petit ion for Review (PFR) File, Tab 5 . The agency has opposed the appell ant’s petition, PFR File, Tab 9 , and the appellant has filed a reply, PFR File, Tab 14. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly found that the agency proved its charge of failure to meet a condition of employment. ¶4 In this charge, the agency asserted that the appellant failed to meet a condition of employment because he could no longer investigate and present cases for prosecution based on letters from the U.S. Attorney for the District of Arizona and the Hopi prosecuto r. IAF, Tab 6, Subtabs 4(e), 4(b). In a June 17, 2013 letter, the U.S. A ttorney for the District of Arizona indicated that the office would no longer prosecute Indian Country cases investigated by the appellant due to his inadequate performance in investigating Fede ral felony matters since approximately 2011. Id., Subtab 4(g). Similarly, in a July 10, 2012 letter, the Hopi prosecutor requested that the appellant be removed from his position due to his performance deficiencies, including , among other things, failing to complete investigations and submit cases for review throughout his almost 15 -year career with the Hopi Agency and mishandling of evidence by bre aking the chain of custody in his cases . Id., Subtab 4(i). ¶5 To sustain a charge of failure to fulfill a co ndition of employment, the agency must show that (1) the requirement at issue is a condition of employment and (2) the appellant failed to meet that condition. Gallegos v. Department of the Air Force , 121 M.S .P.R. 349 , ¶ 6 (2014). The administrative judge found that presenting investigations to Federal and tribal authorities for prosecution was a requirement of the criminal inv estigator position. ID at 10 . He further found that the letters precluded the appellant from presen ting cases to the U.S. Attorney for 4 the District of Arizona and to the Hopi Tribal authorities , and, thus, the appellant failed to meet this requirement. I D at 11. ¶6 On review, the appellant argues that the administrative judge erred in finding that it was a requirement of his position that he be able to present investigations of crimes that occurred on Hopi Tribal land and in the State of Arizona. PFR File, Tab 5 at 7-9. He asserts that he has not failed to meet a condition of his employment because his position description indicates that he may be assigned to other reservations and he is capable of investigating cases for prosecution in 42 of the 43 tribal jurisdictions that the Bureau of Indian Affairs services and in 49 of 50 states. Id. at 9. He also argues that the letters constitute personal opinions of the Hopi prosecutor and U.S. Attorney, both of whom are no longer employed in their respective posi tions. PFR File, Tab 14 at 6 -7. ¶7 The Board’ s standard of review in cases involving an employee’ s failure to meet a condition of employment is fairly deferential. The Board has he ld that it defers to the agency’ s determination as to the requirements that must be fulfilled for an individual to qualify for appointment to and retention in a particular position, absent evidence of bad faith or patent unfairness. Gallegos , 121 M.S.P.R. 349 , ¶ 6; Thompson v. Department of the Air Force , 104 M.S.P.R. 529, ¶ 9 (2007). Here, the agency maintain s that the appellant’s position description requires him to be able to present investigations for Federal, state, local, and tribal prosecution , including in Arizona, and on Hopi land. Indeed, t he appellant testified t hat his principal job duties were to investigate crimes for the purpose of prosecution in the U.S. District Court for the District of Arizona and the Hopi Tribal Court. ID at 2. There is no evidence to support a finding of bad faith or unfairness in the agency’ s view of the requirements of this position . Rather, i t seems reasonable for the agency to require the appellant to be able to investigate cases in the jurisdictions in which he was hired to work as a criminal investigator. Therefore, we defer to the agency’ s discretion to prescribe the duties. See Gallegos , 121 M.S.P.R. 349 , ¶ 6; Thompson , 104 M.S.P.R. 529 , ¶ 10. 5 The administrative judge correctly found that the agency proved its charge of misconduct. ¶8 In specification A of its misconduct char ge, the agency alleged that on October 25, 2011, the appellant did not follow basic investigative protocol when he failed to treat a suspicious suicide as though it were a homicide by sealing off a residence and applying for a Federal search warrant. IAF, Tab 6, Subtab 4(e ). The appellant does not dispute the administrative judge’s finding that the agency proved this charge, and we discern no error in the administrat ive judge’s analysis. ID at 12 -13. ¶9 In specification B, the agency alleged that on October 28, 2011, the appellant left several paper evidence bags and a large red hazmat bag containing evidence from the suspicious suicide outside near the rear police entrance , unattended and unsecured, for 4 days, thereby losing the chain of custody of that evidence . IAF, Tab 6, Subtab 4(e ). The administrative judge construed this charge as alleging that the appellant left evidence outside, unattended, and unsecured, losing the chain of custody, and viewed the language “[a]s a result, the evidence was unusabl e in court, ” as describing the surrounding circumsta nces of the charged conduct. ID at 13, n.2. The administrative judge found that the appellant admitted that he left the evidence bags outside , unattended , and unsecured. ID at 13. The administrative judge rejected the appellant’s argument that the agency failed to prove its charge because the evidence was never formally ruled inadmissible in court. ID at 14 -15. In particular, h e found that the question of whether measures could have been taken to reh abilit ate the evidence to use it in court was not germane to the issue of whether the agency proved that the appellant engaged in misconduct by leaving the evidence outside . ID at 15. ¶10 On review, the appellant argues that the administrative judge erred in his interpretation of the agency’ s charge and improperly failed to require the agency 6 to prove every element of its specification by preponderant evidence.2 PFR File, Tab 5 at 9 -11. He also contends that , in interpreting the charge, the administrative j udge improperly relied on Rosenbe rg v. Departm ent of Transportation , 105 M.S.P.R. 130 (2007). Id. at 10. ¶11 We f ind such arguments unavailing. A n agency is required to prove only the essence of its charge, and need not prove each factual specification in support of the charge . Hicks v. Department of the Treasury , 62 M.S.P.R. 71 , 74 (1994) , aff’d , 48 F.3d 1235 (Fed. Cir. 1995) (Table) . It is undisputed that the appellant left the evidence outside, unattended, and unsecured, and that th is broke the chain of custody. It is true that the charge also stated “[a]s a result, the evidence was unusable in court.” IAF, Tab 6, Subtab 4(e). However, we agree with the administrative judge that the agency was not required to prove that the eviden ce was unusable in court.3 Such language merely describe s the ramifications of the appellant’s misconduct. See, e.g. , McIntire v. Federal Emergency Management Agency , 55 M.S.P.R. 578 , 584 (1992) (finding that the essence of the agency’s 2 The appellant argues that to prove a generic ch arge of misconduct , the agency must prove every element of each specification by preponderant evidence. PFR File, Tab 5 at 11. In support of his argument, he cites to Lachance v. Merit Systems Protection Board , 147 F.3d 1367 (Fed. Cir. 1998). Id. at 10. However, Lachance does not stand for that proposition. Rather, in Lachanc e, the U.S. Court of Appeals for the Federal Circuit explained that, when an agency uses general charging language, the Board must look to the specification to determine what conduct the agency is relying on as the basis for its proposed disciplinary actio n. Lachance , 147 F.3d at 1371. The Court held that to sustain a charge of unacceptable and inappropriate behavior by a supervisor , the agency was not required to prove that the appellant intended to impede the agency’s investigation by m aking comments to a subordinate; rather, the agency also could prove its charge through proof of an alternative basis identified in the specification, that the appellant should have known that his subordinate would perceive his conduct as intimidating. Id. at 1372 -73. 3 On review, the appellant also argues that the administrative judge erred in finding that the evidence was unusable. PFR File, Tab 5 at 11. However, any such error would not provide a basis for reversal because the agency was not required to prove that the evidence was unusable. 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 reversing an initial decision). 7 neglect of duty charge was that the appellant implemented an unauthorized attendance and leave usage system and that the agency’s allegation that the system resulted in hundreds of criminal falsifications of time and attendance records was not a separate element of the charge, but merely explained the ramifications of the appellant’s misconduct). Thus, we agree with the administrative judge that the agen cy proved the essence of the charge.4 The administrative judge properly found that the agency proved that the penalty of removal was reasonable. ¶12 On review, the appellant contends that the administrative judge erroneously rejected his disparate penalty cl aim and improperly failed to mitigate the penalty of removal. PFR File, Tab 5 at 13-16. It is unclear whether the appellant alleged below that he was subjected to a disparate penalty. In his prehearing submission, the appellant alleged t hat the penalty of removal was unreasonable but did not mention disparate penalty or identify any comparators. IAF, Tab 28 at 7. The administrative judge indicated in the initial decision that “to the extent it could be argued that a disparate penalty claim was timely r aised, it fails. Unlike the appellant, [A.S.] was a newly appointed criminal investigator.” ID at 21 n.4. In any event, we find that the appellant failed to establish a claim of disparate penalty because he has not identified any comparators who engaged in the same or similar misconduct. See Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 10 (reiterating that for a disparate penalt y claim to succeed, there must be close similarity in offenses between the appellant and any comparator). ¶13 First, t he appellant contends that the Chief , who discovered and photographed the evidence that the appellant improperly left outside of the Hopi police station, is a proper comparator because he engaged in misconduct when he lost the photographs. PFR File, Tab 5 at 14 -15. To the extent s uch action 4 To the extent that i t appears that the administrative judge relied on Rosenberg , 105 M.S.P.R. 130 , ¶ 17, for the proposition that an agency is only required to pr ove the essence of its charge, ID at 13 n.2, we discern no error in his analysis. 8 amount s to misconduct, it is not similar in nature and seriousness to the appellant’s misconduct in leav ing evidence outside and unattended for 4 days, breaking the chain of custody, and failing to properly conduct an investigation by sealing off the premises and obtaining a Federal search warrant. ¶14 Similar ly, the appellant alleges that three other individu als who worked on the same investigation as him also did not apply for a search warrant. The first comparator was initially assigned to conduct the investigation with the appellant and also did not apply for a search warrant . ID at 2 -3. The administrati ve judge found that this claim failed because this comparator was newly appointed. ID at 21 n .4. Although this comparator’s status as a newly appointed criminal investigator may have justified no discipline, it was not proper to reach that issue because the appellant failed to show that this comparator engaged in similar misconduct to him as a whole, including leaving evidence outside and unattended for 4 days. ¶15 The appellant contends , moreover, that the second and third comparators, who were later assi gned to the same suspicious suicide investigation , also did not obtain a search warrant or treat the investigation as a homicide. PFR File, Tab 5 at 15 -16. However , like the first comparator , the record does not reflect that these individuals engaged in m isconduct as a whole that was similar to the appellant’s misconduct , which also included leaving evidence outside and unattended for 4 days, breaking the chain of custody. Nor does the record reflect that any of the three comparators had a history of comp laints regarding the timeliness and thoroughness of their investigations, as did the appellant. Moreover, e ven if the appellant made out a claim of disparate treatment , and the agency failed to rebut that claim, it does not necess arily follow that the appellant’ s penalty must be reduced. The consistency of a penalty with those imposed on other employees for the same or similar offenses is only one factor to 9 be considered in mitigating an agency -imposed penalty.5 See Singh , 2022 MSPB 15, ¶ 18. The Board f requently has stated that t he nature and seriousness of the offense, and its relation to the employee’s job duties , position, and responsibility, is the most important factor in assessing the reasonableness of the penalty. Id. Here, the record reflects that the deciding official properly considered the Douglas factors , emphasizing the seriousness of the offenses in relation to the appellant’s position and his belief that each charge standing on its own warranted removal. ID at 16. Accordingly, we find that the administrative judge properly found that the penalty of removal was reasonable. The appellant’s remaining arguments do not provide a basis for reversal. ¶16 Lastly, t he appellant asserts that the administrative judge erred in denying his motion s for an adverse inference against the agency and motion for dismissal to allow time to evaluate newly discovered evidence.6 PFR File, Tab 5 at 12 -13. Such motions occurred during the hearing, following testimony that the agency had located the evidence from the suspicious suicide that the appellant had left outside. HT at 32 -38 (June 30, 2015) (rulings made by the administrative judge ). The agency had previously represented during discovery that the evidence could not be located . HT at 34 (June 30, 2015) . As a result of the testimony, the appellant maintain s that he was den ied access to relevant evidence . PFR File, Tab 5 at 12. He contends that he was entitled to inspect such evidence to potentially show that it was in the same condition, despite having been left outside for 4 days, and thus, it would not actually have been unusable in court. Id. at 12 -13. 5 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board articulat ed a non exhaustive list of factors to be considered when evaluating the penalty to be imposed for an act of misconduct. 6 The exact nature of the appellant’s motions is somewhat unclear. The administrative judge ruled that he would not summarily rule in the appellant’s favor or halt the proceedi ngs. HT at 161 (June 30, 2015) (rulings made by the administrative judge) . 10 ¶17 We find that the admin istrative judge did not abuse his discretion in denying such motions. HT at 156 -61 (June 30, 2015); see Oulianova v. Pension Benefit Guaranty Corporation , 120 M.S.P.R. 22 , ¶ 12 (2013) (stating that administrative judges have broad discretion to regulate the proceedings before them). As discussed, we agree with the admin istrative judge’s finding that the agency was not required t o prove that the evidence was unusable in court to sustain specification B of its misconduct charge. Thus, the current state of the evidence and whether or not it could have been rehabilitated were not issues before the administrative judge, and the appel lant was not prejudiced by being denied the opportunity to examine the evidence. ¶18 Accordingly, we affirm the initial decision, sustaining the appellant’s removal. 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 represe nt a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a fin al Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madis on Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Ap pellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accep t representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 12 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Ap peals for the Federal Circuit), within 30 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 calen dar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer a nd to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the lin k below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discriminati on claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this deci sion. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar d ays after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 13 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D. C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Wash ington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge t o 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 w ith the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or an y other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide fo r Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you m ay visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants t hat any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	SIDNEY_IVAN_DE_0752_14_0431_I_1_FINAL_ORDER_2002112.pdf	2023-02-13	null	DE-0752	NP
3,549	https://www.mspb.gov/decisions/nonprecedential/FLEMING_ALEXANDER_SF_0714_22_0218_I_1_REMAND_ORDER_2002116.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALEXANDER FLEMING, I II, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0714 -22-0218 -I-1 DATE: February 13, 2023 THIS ORDER IS NONPRECEDENTIAL* Pauletta Johnson , Seattle, Washington, for the appellant. Mandeev Singh Brar , Esquire, Portland, Oregon, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal as untimely filed by approximately 2 years. For the reasons discussed below, we GRANT the appellant’s petition for review, * A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 VACATE the initial decision , and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 On February 10, 2022, the appellant filed an appeal challenging his February 3, 2020 removal , taken under the authority of 38 U.S.C. § 714 . Initial Appeal File (IAF), Tab 1. He alleged in his initial appeal, among other things, that the agency failed to accommodate his disability . Id. at 6 . The administrative judge i ssued an acknowledgment order, which advised the appellant that the Board may lack jurisdiction over the appeal beca use he appeared to have elected his remedy to file a grievance concerning the appeal and, further, that the appeal appeared to be untimely p ursuant to the 10-business -day deadline contained in 38 U.S.C. § 714(c)(4)(B). IAF, Tab 2 at 2-5. The order directed the appellant to file argument and evidence establish ing that the appeal was t imely filed or that equitable tolling should apply . Id. at 3-6. It further directed the appellant to file argument and evidence regarding the jurisdictional question. Id. at 2-3. The appellant did not file a response. After the agency moved to dismiss the appeal on timeliness grounds, the administrative judge issued a second order giving the appellant additional time to file a response addressing jurisdiction and timeliness. IAF, Ta bs 5 -6. The appellant filed a reply asserting that he did not respond to the acknowledgment order because he was on a jobsite and lacked reliable internet access. IAF, Tab 7 at 3. He made arguments related to the merits of his removal but he did not address the timeliness of his initial appeal and he did not provide additional information relating to his grievance. Id. The administrative judge then issued a third order affording the appellant an opportunity to file evidence related to the timeliness of his appeal. IAF, Tab 8. The appellant did not file a response . 3 ¶3 The administrative judge issued an initial decision dismissing the appeal as untimely filed by 2 years. I AF, Tab 9, In itial Decision at 3-5. The administrative judge explained that the filing deadline for appealing actions taken pursuant t o 38 U.S.C. § 714 is 10 bu siness days, that the statutory filing deadline c ould not be waived for good cause, and that, even if equitable tolling could apply to the deadline, the appellant failed to establish that it should apply because he provided no justification for his delayed filing. Id. The appellant has filed a petition for review, wherein he again argues the merits of the removal action. Petition for Review (PFR) File, Tab 1 at 5. The agency has filed a response in opposition. PFR File, Tab 3. ¶4 Since the issuance of the initial decision in this case , the Board has clarified the filing deadlines i n connection with 38 U.S.C. § 714 actions , particularly in cases such as this, wherein the appellant has raised a claim of discrimination . The 10-business -day time limit set forth in 38 U. S.C. § 714 does not apply if an appellant alleges that the appealable action was taken as the result of unlawful discrimination, i.e., a mixed case. If an individual c overed by 38 U.S.C. § 714 files a mixed -case appeal after filing a formal discrimination complaint with the agency , the time limits are governed by 5 U.S.C. § 7702 and the Board’s implementing regulations. Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 25. If the appellant has not filed a formal discrimination complaint with the agency and raises his discrimination claim for the first time with the Board, an appeal is due 30 days after the effective date of the agency’s action or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later. Davis v. Department of Veterans Affairs , 2022 MSPB 45, ¶¶ 17-19; 5 C.F.R. § 1201.154 (a). These deadlines may be waived for good cause shown. 5 C.F.R. § 1201.22 (c); see Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995) (setting forth the factors to be considered by the Board in determining whet her the appellant established good cause for a delayed filing), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). 4 ¶5 There is insufficient information in the record to determine which deadline should apply to this appeal. Although the administrative judge advis ed the appellant that his appeal appeared to be untimely pursuant to the 10 -business -day deadline set forth in 38 U.S.C. § 714 , she does not appear to have acknowledged his discrimination claim and she did not identify the deadlines set forth in Wilson and Davis , as those decisions had not yet been issued . IAF, Tab s 2, 6, 8. The administrative judge ’s statement that the filing deadline could n ot be waived for good cause shown is incorrect in light of Wilson and Davis . IAF, Tab 2 at 4. We therefore find that the appellant has not been put on clear notice of the precise timeliness issue and the standard to waive an untimely filing , and we must remand this appeal for the administrative judge to provide th e required notice . See Schorr v. Department of the Navy , 79 M.S.P.R. 594 , ¶¶ 12 -13 (1998 ) (stating that the appellant “ cannot be expected to fight a fog of generality” and that he must be put on clear notice of the timeliness issue and given a full opportunity to litigate it) (quoting Hamilton v. Merit Systems Protection Board , 75 F .3d 639 , 646 (Fed. Cir. 1996)). ¶6 We note that the record is not developed as to the question of whether the Board lacks jurisdiction over this appeal based on the appellant’s filing of a grievance. IAF, Tab 1 at 5 , Tab 2 at 2 -3. Specifically, the record contains insufficient information as to the precise subject of the grievance. Accordingly, we do not reach the jurisdictional question here. 5 ORDER ¶7 For the reasons discussed a bove, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FLEMING_ALEXANDER_SF_0714_22_0218_I_1_REMAND_ORDER_2002116.pdf	2023-02-13	null	SF-0714	NP
3,550	https://www.mspb.gov/decisions/nonprecedential/EPPERLY_JAMES_E_SF_0752_17_0606_I_1_REMAND_ORDER_2002119.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES E. EPPERLY, JR., Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -17-0606 -I-1 DATE: February 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 William H. Brawner , Esquire, South Pasadena, California, for the appellant. Catherine V. Meek , Esquire, Long Beach, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his constructive suspension appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 VACATE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 During the relevant time, the appellant was employed as Postmaster of the agency’s Mammoth Lakes Post Office. Initial Appeal File (IAF), Tab 1 at 1. On December 2, 2016, while the appellant was out on sick leave, the appellant’s supervisor allegedly learned that the appellant may have engaged in misconduct by disclosing to the press infor mation regarding one of the agency’s contracts . Id. at 2, 27. The supervisor then contacted the appellant and informed him not to report to work on December 5, 2016, pending a review of his actions. Id. The appellant was placed on paid administrati ve leave for December 5, 2016. IAF, Tab 9 at 61-62. Beginning December 6, 2016, the appellant requested sick leave (regular and under the Family and Medical Leave Act) or annual leave, which the agenc y granted. IAF, Tab 9 at 39 -70, Tab 10 a t 5, 7 -8. On January 12, 2017, he filed for disability retirement. IAF, Tab 9 at 145 -48, 158 . ¶3 On July 24, 2017, the appellant filed a Board appeal alleging that he had been constructively suspended since December 5, 2016. IAF, Tab 1. He alleged that th e agency had verbally instructed him not to report to work and had not provided any written notification . Further, he alleged that he believed that he had been placed in a nonpay status, and he requested leave so as to avoid not having an income . IAF, Ta bs 1, 7, 10. The appellant did not request a hearing. IAF, Tab 1 at 1. The administrative judge issued a jurisdictional order, informing the appellant of his burden of raising nonfrivolous allegations of Board jurisdiction. IAF, Tab 2. After affording the parties an opportunity to respond to the jurisdictional order, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction . IAF, Tab 13, Initial Decision (ID). The administrative judge found th at the appellant failed to prove by preponderant evidence that he was constructively suspended. ID at 3-4. 3 ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition, and the ap pellant has filed a reply. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 An employee’ s absence for more than 14 days may be a constructive suspension appealable under 5 U.S.C. §§ 7512 (2) a nd 7513(d). Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶¶ 7-8 (2013 ). A constructive suspension appeal concerns leave that appears to be voluntary but in fact was not. Id., ¶ 7. An employee may establish juri sdiction if he can prove that he lacked a meaningful choice and that the agency’ s wro ngful actions deprived him of that choice. Id., ¶ 8. In contrast, an agency’ s placement of an employee on enforced leave for more than 14 days constitutes a suspension , which is also within the Board’ s jurisdiction. Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 , ¶ 10 (2014). ¶6 If an appellant raises a nonfrivolous allegation2 that he was constructively suspended for more tha n 14 days, then he is entitled to a hearing, if requested, at which he must prove jurisdiction over his appeal by preponderant evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) (en banc) . The jurisdictional issue in constructive suspension appeals is often dispositive; if the appellant fails to meet his burden of establishing by preponderant evidence that he was constructively suspended, the appeal will be dismissed because the Board lacks jurisdi ction over appeals of employees’ voluntary actions. Abbott , 121 M.S.P.R. 294 , ¶ 8 . The appellant raised nonfrivolous allegations of Board jurisdiction. ¶7 Here, the essence of the appellant ’s claim is that the agency initiated his absence indefinitely without writte n noti ce or any notice regarding the reason for 2 A nonfrivolous allegation is an assertion that, if proven , could establish the matter at issue. 5 C.F.R. § 1201.4 (s). 4 his absence or whether it would be a paid or an unpaid absence . Further , he alleged that he believed it to be an unpaid absence , and thus he requested leave that he would not otherwise have taken so as to avoid going without an income. IAF, Tab 1 at 2 , Tab 7 at 5 -7, Tab 10 at 7 -8. He also alleged that he was never instructed to return to work , he unsuccessfully attempted to contact his supervisor about returning to work, and his supervisor refuse d to spe ak with him. IAF, Tab 2 at 3. Such allegations, if proven, could establish that the appellant lacked a meaningful choice and that the agency’s improper actions in failing to issue a written notice or otherwise inform the appellant of the circumstances su rrounding his placement on leave deprived him of that choice. Accordingly, we find that the appellant raised nonfrivolous allegations that he was subjected to an appealable constructive suspension.3 The administrative judge erred in failing to issue a close of record order to allow the parties further opportunity to develop the record. ¶8 The administrative judge’s jurisdictional order properly informed the appellant that he was required to raise nonfrivolous allegations of Board jurisdiction and that, if he did so, he would be required to establish Board jurisdiction by preponderant evidence either at a hearing, if requested, or during a further opportunity for the parties to develop the record. IAF, Tab 2 at 4 -5. The appellant did not request a hearing . However, without issuing a close of record order, or providing the parties with an opportunity to further develop the record, the administrative judge dismissed the appeal, finding that the appellant failed to prove Board jurisdiction by preponderant evi dence. Thus, prior to the issuance of the initial decision, it was not clear to the parties that they would have no further opportunity to develop the record. 3 The jurisdictional prerequisites of chapter 75 otherwise appear to be satis fied because the appellant is a Postal Service manager with 1 year of current continuous service and his absence lasted for more than 14 days. IAF, Tab 9 at 7, 9, 39 -71; see 39 U.S.C. § 1005 (a)(4)(A) (ii). 5 ¶9 Because the record was not fully developed, it is unclear what information was communicated by the agency to the appellant when he was instructed not to report to work on December 5, 2016 , or whether the appellant was ever informed that he would be placed on administrative leave , and if so, for how long. Fact finding on these material issues is necessary to determine whether the appellant’s request for leave was involuntary . Further, as the appellant argues on review, PFR File, Tab 1 at 18 n.8, because the initial decision was prematurely issued, he was not afforded sufficient time for discovery. ¶10 We find that these errors prejudiced the appellant’s substantive rights . We therefore vacate the initial decision and remand the appeal . See, e.g. , Jarrard v. Department of Justice , 113 M.S.P.R. 502 , ¶ 11 (2010) (remanding an appeal under the Veterans Employment Opportunities Act of 1998 when the administrative j udge found jurisdiction and then ruled on the merits of the appeal without issuing a close of record order or affording the parties an opportunity to make submissions regarding the merits of the appeal); Ruffin v. Department of the Treasury , 89 M.S.P.R. 396 , ¶¶ 8 -9 (2001) (same); Benson v. Office of Personnel Management , 83 M.S.P.R. 549 , ¶ 5 (1999) (remanding when the administrative judge failed to issue a close of record order) ; 5 C.F.R. § 1201.59 (b). On remand , the administrative judge shall afford the parties additional time to complete discovery and further develop the record before issuing a new initial decision.4 The administrative judge also shall consider the appellant’s arguments raised on review. 4 Because the administrative judge dismissed this appeal for lack of jurisdiction, she determined that it was unnecessary to address the timeliness issue. ID at 1 n. 1. Accordingly, on rema nd, if the administrative judge determines that the appellant has established jurisdiction over his constructive suspension claim, she shall determine whether this appeal was timely filed. See Fields v. U.S. Postal Service , 117 M.S.P.R. 475, ¶ 7 (2012) (explaining that t he issues of timeliness and jurisdiction generally are considered to be inextricab ly intertwined in a constructive suspension appeal because a failure to inform an employee of Board appeal rights may excuse an untimely filed appeal, and whether the agency was obligated to inform the employee of such appeal rights depends on whether he w as affected by an appealable action ). 6 ORDER ¶11 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	EPPERLY_JAMES_E_SF_0752_17_0606_I_1_REMAND_ORDER_2002119.pdf	2023-02-13	null	SF-0752	NP
3,551	https://www.mspb.gov/decisions/nonprecedential/GARZA_GERARDO_DE_315H_22_0094_I_1_REMAND_ORDER_2002198.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GERARDO GARZA, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DE-315H -22-0094 -I-1 DATE: February 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 Gerardo Garza , Laredo, Texas, pro se. Kimberly Finley , Esquire, Tucson, Arizona, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for review, AFFIRM the administrative judge’s finding that the Board lacks jurisdiction to review the appellant’s probationary 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 termination under 5 U.S.C. chapter 75 or 5 C.F.R. part 315, subpart H, VACATE the administrative judge’s finding that the Board lacks jurisdiction over his denial of restoration claims , REMAND the appeal to the Denver Field Office for a hearing on the merits of the appellant’s claim that on or about January 3, 2022, the agency violated his restoration rights following partial recovery from a compensable injury, and FORWARD the appellant’s petition for review to the Denver Field Office for docketing as a new appeal concerning his claim that the agency unlawfully denied his subsequent March 4, 2022 request for restoration. BACKGROUND ¶2 The appellant began employment with the agency as a Customs and Border Protection Officer (CBPO) on May 23, 2021. Init ial Appeal File (IAF), Tab 5 at 7. His appointment was subject to a 1 -year probationary period. Id. On June 8, 2021, the appellant suffered on -the-job injuries to his neck and ankle. IAF, Tab 1 at 5, 7. The appellant has alleged that the injuries were “approved” by the Office of W orkers’ Compensation Programs and are therefore compensable injuries. IAF, Tab 1 at 5, Tab 8 at 4. The agency placed him in a light -duty position, which he performed until January 3, 2022. IAF, Tab 1 at 7 . By letter dated December 10, 2021, which the a ppellant asserts he received on January 3, 2022, the agency terminated the appellant’s employment 7 months into his probationary period because he was unable to return to full duty to complete the required training for CBPOs. Id. at 3, 7. ¶3 The appellant appealed to the Board. Id. at 1-11. The administrative judge issued two jurisdiction al orders. IAF, Tabs 3, 7. The first order explained that the Board ordinarily lacks jurisdiction over termination appeals brought by probationary employees with less t han 1 year of Federal service and provided the appellant with an o pportunity to establish that he is an “employee” with appeal rights , as defined by 5 U.S.C. § 7511 , or that he met one of the other exceptions to establish jurisdiction over his appeal . IAF , Tab 3. The appellant submitted a 3 response , in part, asserting that he was see king restoration as an employee who partially recovered from a compensable injury . I AF, Tab 6 at 4. The administrative judge then issued a second jurisdictional order, which explained how to establish jurisdiction over a restoration appeal. IAF, Tab 7. In his March 4, 2022 response to the second jurisdiction al order, the appellant asserted that he had recovered from one of his compensable injuries and attached medical documentation in support of his assertion . IAF, Tab 8 at 4 -60. Without holding a hearing, t he administrative judge issued an initial decision dismissing th e appeal for l ack of jurisdiction. IAF, Tab 10, Ini tial Decision (ID) at 2 -8. ¶4 The appellant has filed a petition for review of the initial decision, and the agency has filed a response in opposition. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 Generally, probationary employees with less than 1 year of Federal service, like the appellant , have limited statutory and regulatory rights on appeal. The appellant has not challenged, and we find no error in, the administrative judge’s findin g that the Board lacks jurisdiction over the appellant’s termination appeal because the appellant failed to establish that he is an “employee” with appeal rights under 5 U.S.C. chapter 75 and he failed to nonfrivolously allege that his termination was motivated by mar ital status discrimination or partisan political reasons or that it was based, in whole or part, on matters that occurred before his appointment. ID at 4 -6. Accordingly, we affirm those findings. ¶6 However , a probationary employee, like the appellant, may appeal a denial of restoration rights based on a compensable injury. See Roche v. U.S. Postal Service , 828 F.2d 1555 , 1557 ( Fed. Cir. 1987). Pursuant to 5 C.F.R § 353.301(d) , agencies are require d to “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” 4 To establish Board jurisdiction over a restoration claim as a partially recovered employee, the appellant must make nonfrivolous allegations of the following : (1) he was absent from h is position due to a compensable i njury ; (2) he recovered sufficiently to return to duty on a part -time basis, or to return to work in a position with less demanding physical requirements than those previously required of h im; (3) the agency denied h is request for restoration ; and (4) the denial was arbitrary and capricious. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 12. A denial of restoration is arbitrary a nd capricious if, and only if, the agency failed to meet its obligations under 5 C.F.R. § 353.301 (d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee and to consider h im for any such vacancies. Cronin , 2022 MSPB 13 , ¶¶ 14, 20. Determining whether an agency met its obligation under section 353.30 1(d) will turn on whether it “ma[d]e every effort” to restore a partially recovered employee “in the local commuting area” and “according to the circumstances in each case.” Id., ¶ 21 (quoting 5 C.F.R. § 353.301 (d)). ¶7 The administrative judge found, and the parties do not dispute, that the appellant nonfrivolously alleged that he suffered a compensable injury a nd that he recovered sufficiently to return to work in a position with less demanding physical requirements than those previ ously required of him, therefore meeting the first two elements of the jurisdictional analysis. ID at 6 -7. As to the third element , the administrative judge found that the appellant failed to nonfri volously allege that the agency denied his request for restoration because he never requested restoration. ID at 8. We disagree. The Board has held that the rescission of a previously p rovided restoration or the discontinuation of a limited -duty position may constitute an appealable denial of restoration , regardless of whether the action was protested by the employee and whether he made a specific request for restoration at that time . Scott v. U.S. Postal Service , 118 M.S.P.R. 375 , ¶¶ 9-10 & n.2 (2012). The appellant has submitted his 5 termination letter, which discontinued his light -duty position. IAF, Tab 1 at 7-8. Thus, we find that the appellant has nonfrivo lously alleged that the agency denied his restoration rights when it discontinued his light -duty position on January 3, 2022 . IAF, Tab 1 at 3, 7 -8. Regarding the fourth element, the agency appears to suggest in its filings that it d id not conduct a search for vacant positions in the local commuting area.2 IAF, Tab 9 at 6 . Accordingly, we find that the appellant has nonfrivolo usly alleged jurisdiction over appeal concerning the alleged denial of his restoration rights on January 3, 2022, and we remand to the Denver Field Office for a hearing on the merits of that claim . ¶8 We also address a second potential restoration claim . In his March 4, 2022 response to the jurisdiction al order, the appellant asserted that he had recovered further since the agency terminated his employment , and he submitted medical documentation related to one of his two alleged compensable injuries . IAF, Ta b 8 at 4. In response, the agency asserted that the appellant could contact the agency to invoke his restoration rights as a partially recovered employee, in which case it would then attempt to restore him. IAF, Tab 9 at 6. We find that the appellant’ s filing is sufficient to put the agency on notice that he is seeking restoration as a partially recovered employee. To the extent the agency expects the appellant to submit additional filings in order to invoke his restoration rights, we find that this is inconsistent with Board case law. See Gerdes v. Department of the Treasury , 89 M.S.P.R. 500 , ¶¶ 12-13 (2001) (cautioning against the imposition of additional notice requirements beyond those set forth in 5 C.F.R. § 353.301 for an individual who seeks restoration). The appellant’s petition for review suggests that, as of the filing date of that petition , the agency had not yet acted on his request. PFR File, Tab 1 at 4. Accordingly, we forward the appellant’ s petition for review to 2 The agency argues that it would be unreasonable to reinstate the appellant to a law enforcement position because he is unable to attend the basic training academy. IAF, Tab 9 at 6. Although this argument relates to the m erits and should be addressed by the administrative judge on remand, we note that 5 C.F.R. § 353 .301 (d) does not require reinstatement to the same position held at the time of the injury. 6 the Denver Field Office for docketing as a new appeal regardin g the denial of restoration rights after March 4, 2022 .3 ORDER ¶9 For the reasons discussed above, we remand this appeal to the Denver Field Office for a hearing on the merits of the appellant’s claim that on or about January 3, 2022, the agency violated hi s restoration rights following partial recovery from a compensable injury. We also forward the appellant’s petition for review to the Denver Field Office for docketing as a new appeal regarding the appellant’s claim that the agency denied his March 4, 202 2 request for restoration as a partially recovered employee . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 3 We make no findings as to whether the appella nt has established jurisdiction over this claim.	GARZA_GERARDO_DE_315H_22_0094_I_1_REMAND_ORDER_2002198.pdf	2023-02-13	null	DE-315H	NP
3,552	https://www.mspb.gov/decisions/nonprecedential/SNYDER_CHRISTOPHER_R_SF_0752_21_0420_I_1_FINAL_ORDER_2002216.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER R. SNYDE R, SR , Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER SF-0752 -21-0420 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher R. Snyder, Sr. , Chula Vista, California, pro se. Jeffrey Baldridge , Esquire, and Justin Strong , Esquire, Los Angeles A ir Force Base, California, for the agency. Kathryn Price , Esquire, Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for failure to prosecute. On petition for review, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant argues that he believed the prehearing conference was scheduled for March 16, 2022; alleges he was unaware that the administrative judge issued orders in his appeal until he spoke with the agency representative after the initial decision had been issued and subse quently logged into e -Appeal to “ascertain the status” of his case; and challenges the merits of the agency removal action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findin gs of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the in itial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligen ce, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the natu re of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal r ights, the Merit Systems Protection Board does not provide legal advice on which option is most 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 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their juris diction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the d ismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. C ourt of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 4 for Merit Sy stems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judici al review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decisi on. 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 enti tled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respecti ve websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office 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 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. ma il, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, i t must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option a pplies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of app eals 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 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 for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	SNYDER_CHRISTOPHER_R_SF_0752_21_0420_I_1_FINAL_ORDER_2002216.pdf	2023-02-13	null	SF-0752	NP
3,553	https://www.mspb.gov/decisions/nonprecedential/WATTY_NATHANIEL_NY_3330_22_0042_I_1_FINAL_ORDER_2002233.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NATHANIEL WATTY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-3330 -22-0042 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nathaniel Watty , Jamaica, New York, pro se. Jack P. Di Teodoro , Esquire, Brooklyn, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal for lack of jurisdiction . On petition for review, the appellant argues the merits of the agency’s allege d VEOA violations and generally disagrees with 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 administrative judge’s findings that he failed to file his Department of Labor (DOL) complaint within the 60 -day statutory deadline . Petition for Review (PFR) File, Tab 1 at 4-11. 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 petition for review. Except as expressly MODIFIED to REVERSE the administrative judge’s finding that the Board lacks jurisdiction over this VEOA appeal and deny the appellant’s request for corrective action under VEOA for a failure to meet the 60 -day time limit for filing a DOL complaint under 5 U.S.C. § 3330a (a)(2)(A) , we AFFIRM the initial decision. ¶2 The 60 -day filing deadline set fort h at 5 U.S.C. § 3330a (a)(2)(A) is subject to equitable tolling, and an employee’s failure to file a complaint within that 60-day period does not summarily foreclose the Board from exercising jurisdiction to review the appeal. See Gingery v. Office of Person nel Management , 119 M.S.P.R. 43 , ¶ 17 (2012) . Federal courts have typically extended equitable relief sparingly, such as when th e complainant had actively pursued his judicial remedies by filing a defective pleading during the statutory period or when the complainant had been “induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Id. (citing Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990)). 3 ¶3 Here, the record is devoid of argument or evidence that the appellant filed a defective pleading within the statutory period or that he was “tricked” or “induced” by an agency representative into filing late. PFR File, Tab 1 at 4, 8 -9; Initial Appeal File, Tab 1. Instead, the appellant claims that he was not aware that his veterans’ preference rights had been violated until October 2021. PFR File, Tab 1 at 8. Similar arguments for equitable tolling have been rejected by the Board. See Brown v. U.S. Postal Service , 110 M.S.P.R. 381 , ¶ 12 (2009) (finding that a lack of information showing a violation of veterans’ preference rights does not fall within the limited s cope of cases to which equitable tolling applies); Mitchell v. Department of Commerce , 106 M.S.P.R. 648 , ¶ 10 (2007) (finding in a nonselection appeal that the appellant’s argument that he was not “aware of the injustice” of the agency’s selection procedure until after the 60 -day deadline had passed did not warrant equitable tolling), aff’d , 276 F. App’x 1007 (Fed. Cir. 2008), overr uled on other grounds by Garcia v. Department of Agriculture , 110 M.S.P.R. 371 (2009). Thus, b ecause there is no indication that t he appellant pursued his remedy within the statutory period or that his failure to file a timely VEOA complaint with DOL was the result of the agency’s misconduct, equitable tolling is inappro priate. ¶4 When, as here, an appellant files an untimely DOL compla int and equitable tolling does not apply, the request for corrective action must be denied for failure to meet the 60 -day time limit. Gingery , 119 M.S.P.R. 43 , ¶ 16 n.3. Therefore, the appellant ’s request for corrective action under VEOA is denied because he failed to meet the time limit for filing a complaint with the Secretary of Labor under 5 U.S.C. § 3330a (a)(2)(A). 4 NOTICE OF APPEAL RIG HTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit f or seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board doe s not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that fo rum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by th e court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals 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 6 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 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity C ommission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.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 under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the 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 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective 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	WATTY_NATHANIEL_NY_3330_22_0042_I_1_FINAL_ORDER_2002233.pdf	2023-02-13	null	NY-3330	NP
3,554	https://www.mspb.gov/decisions/nonprecedential/HALBERT_MICHAEL_E_DE_0842_22_0104_I_1_FINAL_ORDER_2002238.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL E. HALBERT, II, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DE-0842 -22-0104 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael E. Halbert, II, Globe, Arizona, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal challenging the agency’s denial of his application for a deferred or postponed retirement annuity under the Federal Employees ’ Retirement System (FERS) for lack of jurisdiction because the agency had not yet 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 issued a final decisi on. On petition for review, the appellant argues that the administrative judge factually erred by not finding that the agency had issued a final decision and that the agency failed to submit its complete evidence file to the administrative judge . Petition for Review File, Tab 1 at 1 -2. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regula tions, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 f or granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHT S3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such 2 Throughout this appeal, it became clear that although the appellant submitted an application for deferred or postponed retirement benefits under FERS, which the agency responded to and forms the basis of this appeal, what the appellant is really seeking is law enforcement officer (LEO) retirement benefits , which is a separate issue . The agency has stated that once the instant appeal is dismissed, it wil l remand the appellant’s case for development on the LEO certification issue and then render a final decision. See Initial Appeal File, Tab 12 at 6. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of revi ew rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 review and the appropr iate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which op tion 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) Judici al review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.usco urts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 en dorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that yo u were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 representati ve receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all othe r 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. 20013 If you submit a req uest for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judic ial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2 302(b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of all egations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals fo r the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 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 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 Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 r eprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	HALBERT_MICHAEL_E_DE_0842_22_0104_I_1_FINAL_ORDER_2002238.pdf	2023-02-13	null	DE-0842	NP
3,555	https://www.mspb.gov/decisions/nonprecedential/WATTY_NATHANIEL_NY_4324_22_0043_I_1_FINAL_ORDER_2002249.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NATHANIEL WATTY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-4324 -22-0043 -I-1 DATE: February 13, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nathaniel Watty , Jamaica, New York, pro se. Jack P. Di Teodoro , Esquire, Brooklyn, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his Uniformed Services Employment and Reemployment Rights Act of 1994 appeal for lack of jurisdiction . On petition f or review, the appellant largely reasserts his allegations below, restating all the actions which he claims the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 agency took aga inst him. Petition for Review File, Tab 2 at 6 -23; Initial Appeal File, Tab 1 at 7, Tab 8 at 4 -10. Generally, we grant petitions such as this one only in the following c ircumstances: 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 jud ge’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 arg ument 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 decisio n, 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 c ourts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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 questio ns about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington , D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono 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 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 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity C ommission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.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 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.3 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). 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. 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	WATTY_NATHANIEL_NY_4324_22_0043_I_1_FINAL_ORDER_2002249.pdf	2023-02-13	null	NY-4324	NP
3,556	https://www.mspb.gov/decisions/nonprecedential/BRIDGEFORD_KATHERINE_RENEE_AT_0714_21_0636_I_1_REMAND_ORDER_2002269.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KATHERINE RENEE BRID GEFORD, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -21-0636 -I-1 DATE: February 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 Katherine Renee Bridgeford , Augusta, Georgia, pro se. Kimberly Kaye Ward , Esquire, and Sophia E. Haynes , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Cha irman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for revie w of the initial decision, which dismissed her demotion appeal as moot after denying her affirmative defenses of discrimination (race and sex) and reprisal for equal employment opportunity 1 A nonprecedential order is one that the Board has determined does not add significantly to the body 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 (EEO) activity . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the portion of the initial decision that dismisse d the demotion appeal as moot, AFFIRM the administrative judge’s denial of the appellant’s affirmative defenses of rac e and sex discrimination and reprisal for EEO activity , and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant filed an appeal of her November 22, 2020 demotion from Supervisory Pol ice Officer , GS -8, to Police Officer, GS -6. Initial Appeal File (IAF), Tab 1. She raised affirmative defenses of race and sex discrimination , reprisal for engaging in EEO activity , and harmful error . IAF, Tab 36 at 2 . While t he appeal was pending before the administrative judge, the agency indicated that it was rescinding the demotio n action. IAF, Tab 34. The agency filed , among other things, a reassignment notice dated February 23, 2022. IAF, Tab 35 at 7. The notice state d that the demotion was being rescinded effective immediately and that , “[c]oncurrent with the rescission,” the appellan t was being reassigned from her Supervisory Police Officer, GS -8, Ste p 5, position to a Secretary, GS -8, Step 5, position effective February 27, 2022. Id. The notice also stated that 67.3 hours of leave without pay and 1,212 hours of absent without leave would be corrected to reflect the appellant’s status as on duty. Id. ¶3 At the prehearing conference, the parties discus sed the rescission of the demotion . IAF, Tab 36 at 1 -2. The administrative judge informed the parties that, for the appeal to be moot, the appellant must have received all of the relief that she could have received if the matter had been adjudicated and she had prevailed. Id. The administrative judge scheduled a hearing limited to the appellant’s discrimination and reprisal defenses, upon which, if she prevailed, she might be entitled to damages. Id. at 2. The administrative judge stated that the 3 appe llant’s harmful error claim would not be adjudicated to the extent that rescission of the demotion would encompass all potential relief on that claim. Id. ¶4 The appellant submitted a written response to the prehearing conference order , wherein she asserted that the demotion was not moot, in part, because the agency had reassigned her to a Secretary position instead of restoring her to the Supervisory Police Officer position that she occu pied before the demotion. IAF , Tab 39 at 5 -6. She also asserted that s he had not received “back pay with interest, overtime, appropriate contributions to her [Thrift Savings Plan] account, 67.30 hours of leave without pay and 1 ,212 hours absent without leave ,” and she requested compensatory damages and attorney fees. Id. at 6. Finally, t he appellant asserted that she should be reinstated to a GS -9 position due to the agency’s reclassification of the Supervisory Police Officer position. Id. After a hearing , the administrative judge issued an initial decision . She found that the agency had done all it could do to rescind the demotion , and she denied on the merits the appellant’s affirmative defenses of race and gender discrimination and reprisal . IAF, Tab 48 , Initial Decision (ID) at 2 -9. She dismissed the appeal as moot. ID at 2, 4 -5, 9. ¶5 The appellant has filed a petition for review , wherein she asserts that the demotion app eal is not moot because she has not received all of the relief that she could have received if the matter had been adjudicated and she had prevailed . Petition for Rev iew (PFR) File, Tab 1 at 4 -5. Specifically, she challenges the agenc y’s calculation of back pay and restoration of her leave . Id. at 4-5, 163 -65. She cites the statute permitting the authorization of attorney fees and refiles documents that she submitted to the administrative judge. Id. at 5-162. The agency has not filed a response. We remand this appeal for further adjudication of the demotion claim. ¶6 The unilateral modification of an adverse action after an appeal has been filed can not divest the Board of jurisdiction unless the appellant consents to such divestiture or the agency completely rescinds the action being appealed. See 4 Sredzinski v. U.S. Postal Service , 105 M.S.P.R. 571 , ¶ 4 (2007). As the administrative judge correctly noted, for an appeal to be deemed moot, the appellant must have received all of the relief that she could have received if the matter had been adjudica ted and she had prevailed , and the agency must return her “as nearly as possible” to the status quo ante. Thomas v. U.S. Postal Service , 73 M.S.P.R. 120 , 125 (1997) (quoting Kerr v. National Endowment for the Arts , 726 F.2d 730 , 733 (Fed. Cir . 1984)). When, as here, the agency has not reinstated the appellant to her former position and duties, the Board will examine whether the agency had compelling reasons for not doing so. See Currier v. U.S. Postal Service , 72 M.S.P.R. 191 , 199 (1996). If compelling reasons exist, the Board will next examine whether the duties and responsibilities of the former position are substan tially equivalent in scope and status to those of the current position. Id. The administrative judge did not determine in the initial decision whether the agency had a compelling reason for reinstating the appellant to a Secretary position instead of the Supervisory Police Officer position , and the record does not contain sufficient information for us to make that determination. Accordingly, we remand the appeal to the regional office to accept evidence and make findings on these issues.2 On remand, the administrative judge sh all also make findings on whether the appellant received appropriate back pay and benefits. ¶7 We also address the appellant’s argument that she should have been reinstated to a GS -9 position as a result of the agency’s reclassificat ion of the Supervisory Polic e Officer position. IAF, Tab 39 at 6; PFR File, Tab 1 at 11 . On 2 There is a threshold jurisdictional issue that must be addressed on re mand . The appellant’s demotion appears to have occurred during a supervisory probationary period. IAF, Tab 1 at 6 (citing 5 C.F.R. § 315.907 ). Although the Board normally lacks jurisdiction over such actions, there are various exceptions, including if the action was taken for reasons other than supervisory or managerial performance or if it was based on marital status or partisan political discrimination . 5 C.F.R. §§ 315.90 7-.909. On remand, the administrat ive judge shall make findings as to the Board’ s jurisdiction over this appeal. 5 remand, the administrative judge sh all determine if the appellant is raising a constructive demotion claim. See Crum v. Department of the Navy , 75 M.S.P.R. 75, 80-81 (1997) (explai ning constructive demotion claims ). If the administrative judge finds that the appellant is raising a constructive demotion claim, she sh all docket the claim as a new appeal . We make no findings as to whether the Board has jurisdiction over a potential constructive demotion claim. We affirm the administrative judge’s finding that th e appellant failed to prove her affirmative defenses. ¶8 The appellant’s petition for review does not challenge the administrative judge’s findings as to her affirmative defenses. PFR File, Tab 1 at 4 -5. W e note that the appellant has filed a motion for le ave to file an additional plead ing on review , wherein she stated , for the first time, that she intends to challenge the administrative judge’s deni al of her affirmative defenses. PFR File, Tab 4 at 4. The Board’s regulations do not provide for such an ad ditional pleading, as a general rule. See 5 C.F.R. § 1201.114 (a). The finality date of the initial decision was April 27, 2022. ID at 10. The appellant’s motion was filed May 5, 2022 , and we presume her first attempt at submitting argument on her affirmative defenses was in the rejected pl eading dated April 30, 2022. P FR File , Tabs 3 -4. T he appellant has not explained why the evidence and argument she intends to file could not have been included with her petition for review or at least submitted within the time for filing a petition for review . PFR File, Tab 4. We find no basis for an exception to the general rule here. Therefore, we deny her motion. We affirm the administrative judge’s findings as to the appellant’s race and sex discrimination and reprisal defense s.3 ID at 5-9. ¶9 Finally, t o the extent the appellant seeks attorney fees or a related determination that she is a prevailing party , her reques t is premature because there is not yet a final decision in this appeal . PFR File, Tab 1 at 5 (citing 3 Nothing in this Order precludes the appellant from raising affirmative defenses in connection with a potential constructive demotion claim. 6 5 U.S.C. § 7701 (g)(1)); see 5 U.S.C . § 7701 (g) (authorizing an award of attorney fees for a prevailing party). ORDER ¶10 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. On remand, the administrative judg e shall make a threshold jurisdictional finding . If jurisdiction is found , the administrative judge shall determine whether the appellant’s placement in the Secretary position returns her to the status quo ante, as discussed above , and shall make findings as to whether the appellant received the appropriate back pay and benefits . If the administrative judge determines that the appellant has been received all of the relief that she could have received if the matter had been adjudic ated and she had prevailed, then the administrative judge shall find that the demotion appeal is moot. If not, the administrative judge shall adjudic ate the merits of the demotion appeal , including the appellant’s affirmative defense of harmful error. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BRIDGEFORD_KATHERINE_RENEE_AT_0714_21_0636_I_1_REMAND_ORDER_2002269.pdf	2023-02-13	null	AT-0714	NP
3,557	https://www.mspb.gov/decisions/nonprecedential/CARVELLI_ANTHONY_R_SF_3443_17_0504_I_1_REMAND_ORDER_2002295.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTHONY R. CARVELLI, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-3443 -17-0504 -I-1 DATE: February 13, 2023 THIS ORDER IS NONPRECEDENTIAL1 Judy Martinez , Hercules, California, for the appellant. Tanisha J. Locke , Esquire, Long Beach, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAN D ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of an alleged reduction in pay for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for review , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 VACATE the in itial decision, and REMAND the case to the Board’s Western Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The following facts are undisputed and in the record. Effective May 2014, the appellant accepted a voluntary downgrade from an Executive and Administrative Schedule (EAS) 25 position to an EAS -24 position, with 1 -year saved salary. Initial Appeal File (I AF), Tab 4 at 48 -50. He subsequently applied for a promotion back to a different EAS -25 position. Id. at 47. The selecting official selected him and proposed to offer him a 5% salary increase. Id. at 45-46. The concurring official approved the selecti on and the 5% salary increase, to be effective January 10, 2015. Id. at 43 -44. On December 30, 2014, the agency offered the appellant the position , with the 5% salary increase, which he accepted. Id. at 21, 41-42. ¶3 Upon receipt of his R eassignment/P romot ion Postal Service Form 50, the appellant noticed that his salary was unchanged from his 1 -year save d pay rate. IAF, Tab 1 at 20, Tab 4 at 35, 40. The agency argues that it did not implement the salary increase because it violate d its Employee and Labor Relations Manual (ELM) , section 415.3(a). Petition for Review (PFR) File, Tab 3 at 4; IAF, Tab 4 at 7-8, 20, 30. That section provides that if an employee in a saved -pay status is promoted to a position at or above the salary “on which the retai ned rate was established . . . the retained rate continues” until, as applicable here, the 1 -year retention period ends. IAF, Tab 4 at 30 -31. The appellant and leadership within the San Francisco District, where he was assigned , sought to have his pay ra te corrected to what they believed was the proper rate , but the agency denied their requests, citing ELM section 415.3(a) . IAF, Tab 1 at 12 -14, Tab 4 at 16-18, 20-21, 35. After these requests were unsuccessful, the appellant filed the instant 3 appeal and then, a few days later, filed a formal complaint of race and age discrimination with the agency.2 IAF, Tab 1, Tab 4 at 15 -18. ¶4 In his Board appeal, the appellant argued that the agency’s denial of the promised salary increase was a reduction in pay or grad e. IAF, Tab 1 at 4. The administrative judge issued an acknowledgment order, which apprised the appellant that the Board may lack jurisdiction over his appeal; generally referred to 5 C.F.R . § 1201.3 , the Board regulation listing the appealable matters within its jurisdiction; and identified a reduction in pay as a type of appealable action within the Board’s jurisdiction. IAF, Tab 2 at 2. The administrative judge ordered the appellant to respond to the jurisdictional issue. Id. The appellant submitted a response, and the agency moved to dismiss the appeal as beyond the Board’s jurisdiction and untimely filed. IAF, Tab 4 at 8 -12. ¶5 The ad ministrative judge issued an initial decision dismiss ing the appeal for lack of jurisdiction without holding the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 6 , Initial Decision (ID) at 1. The administrative judge found, without explanation, that the appellant failed to nonfrivolously allege Board jurisdiction over the claimed pay “error ” or any other allegation raised. ID at 2-3. He did not further clarify the appellant’s burden of proof as to a reduction -in-pay claim . Id. ¶6 The appellant has fil ed a petition for review, reasserting that the agency reduced his pay by denying him the promised 5% salary increase and submits evidence in support of his claim. Petition for Review (PFR) File, Tab 1. The agency has responded. PFR File, Tab 3 at 4 -6. The appellant has filed a reply, arguing that the agency’s response was untimely filed.3 PFR File, Tab 4 at 2 -3. 2 Because the appellant filed his appeal to the Board first, he is deemed to have elected to proceed before the Board. Miranne v. Department of the Navy , 121 M.S.P.R. 235 , ¶ 8 (2014). 3 In light of our decision to remand the appeal for further adjudication of the jurisdictional issues, we find it unnecessary to determine the ti meliness of the agency’s response to the petition for review. 4 DISCUSSION OF ARGUME NTS ON REVIEW ¶7 The appellant bears the burden of establishing jurisdiction over h is appeal. 5 C.F.R. § 1201.56 (b)(2)(i) (A). If an appellant makes a nonfrivolous allegation that the Board has jurisdiction, he is entitled to a hearing on the jurisdictional question . Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven, could establish a prima facie case that the Board has jurisdiction over the matter in issue. Id. Before dismissing an appeal for lack of jurisdiction, an administrative judge must provide an appellant with explicit information on what is required to establish an appealable juri sdictional issue and an opportunity to meet that burden . Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643-44 (Fed. Cir. 1985). ¶8 The B oard generally has jurisdiction to review an appeal of a reduction in grade or pay. 5 U.S.C. § 7512 (4); Levy v. Department of Labor , 118 M.S.P.R. 619, ¶ 6 (2012) ; see 5 C.F.R. § 752.402 (defining “pa y” for purposes of chapter 75 as “the rate of basic pay fixed by law or administrative action for the position held by the employee, that is, the rate of pay before any deductions and exclusive of additional pay of any kind”) . To establish jurisdiction over the agency’s failure to effectuate a promised increase in pay in conjunction with a promotion, an appellant must establish that (1) the increase in rate of basic pay actually occurred; that is, it was approved by an authorized official aware that he was granting the pay increase ; (2) the appellant took some action d enoting acceptance of the increase in rate of basic pay ; and (3) the increase in rate of basic pay was not revoked before it became effective .4 See Levy , 118 M.S.P.R. 4 In finding that the Board may have jurisdiction over the cancelation of a pay increase in these circumstances, we do not suggest that the cancelation of a pay increase, absent an accompanying promotion, is appealable to the Board. It is not. See Caven v. Merit Systems Protection Board , 392 F.3d 1378 , 1381 (Fed. Cir. 2004) (explaining that the Board lacks jurisdiction over the denial of a promotion and the accompanying increase in pay). The alleged circumstances differ here because the appellant is alleging that the 5 619, ¶ 10 (applying these factors to the cancellation of a promotion). Thus, by alleging that the agency offered, and he accepted , a 5% salary increase , the appellant has made nonfrivolous allegations as to (1) and (2) . ¶9 We find that t he acknowledgment order did not specifically notify the appellant of what he must do to establish Board jurisdiction ove r his reduction -in-pay appeal . IAF, Tab 2 at 2 . Neither the agency’s motion to dismiss nor the initial decision cured that error. ID at 2-3, IAF, Tab 4 at 10 -12; see Milam v. Department of Agriculture , 99 M.S.P.R. 485, ¶ 10 (2005) (recognizing that an ad ministrative judge’s failure to provide an appellant with proper Burgess notice can be cured if an agency pleading or the initial decision contain s the notice that was lacking ). Thus, the appellant did not receive explicit information on what was required to establish Board jurisdiction o ver his reduction -in-pay claim. See Burgess , 758 F.2d at 643-44. Therefore, we remand the appeal to afford the appellant an opportunity to make the necessary jurisdictional showing as to the third element of his jurisdiction burden, i.e., that the increase in rate of basic pay was not revoked before it became effective . If he does so, he is entitled to a jurisdictional hearing at which he must prove jurisdiction by preponderant evidence. ¶10 The agency has presented argument and evidence that could potentially rebut any prima facie showing of jurisdiction that the appellant may make as to his reduction -in-pay claim . The agency alleged that it denied the appellant’s 5% salary increase because it violated ELM section 415.3 (a). IAF, Tab 4 at 7 -8. Contrary to the general rule, a reduction in a rate of basic pay is not an appealable action when an agency reduces an employee’s basic pay “from a rate that is contrary to law or regulation .” Dekmar v. Department of the Army , 103 M.S.P.R. 512, ¶ 8 (2006) ; 5 C.F.R. § 752.401 (b)(15) . An employee should not be forced to prove that the agency did not make an error in setting his pay because the agency agency actually promoted him and granted him an accompany ing pay increase but that it later canceled only the pay increase. PFR File, Tab 1 at 1. 6 is in a much better position to know why it originally set the employee’ s pay as it did and what later led it to conclude that it made an error . Dekmar , 103 M.S.P.R. 512, ¶ 9. Thus, if the appellant meets his jurisdictional burden, the a dministrative judge should hold a hearing at which the parties may address the issue of whether the agency’s alleged pay reduction was the correction of a prior rate that was contrary to its ELM. ¶11 To the extent that the appellant is alleging that his race and age were the true reasons for the alleged pay reduction, and not a violation of ELM section 415.3(a) , he may present evidence in support of this claim at the jurisdictional hearing. IAF, Tab 4 at 15 -16. However, if the Board lacks jurisdiction over the appellant’s alleged reduction in pay, it cannot separately adjudicate his discrimination claims. See Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 20 (2015) (explaining that, at the jurisdictional stage, the Board will only consider allegations of discrimination and reprisal to the extent they bear on the jurisdictional issue), aff’d , 833 F.3d 1432 (Fed. Cir. 2016). ORDER ¶12 For the reasons discussed above, we remand this case to the Board’s Western Regional Office for further adju dication in accordance with this Remand Order. On remand, the administrative judge should explicitly notify the appellant of his jurisdictional burden. If the appellant nonfrivolously alleges jurisdiction , and if the appeal is timely , the administrative judge should hold a jurisdictional hearing, at which the parties may present evidence as to jurisdiction , including whether the agency corrected the appellant’s pay pursuant to the ELM or for other reasons . ¶13 The timeliness of the appeal is also at issue. Below, the agency argued that the appeal was untimely by over 2 years without good cause shown for the delay. IAF, Tab 4 at 8 -10. The administrative judge did not address the timeliness of the 7 appeal given his decision to dismiss the appeal for lack of jurisdiction. ID at 1 n*. When an agency is required to noti fy an individual of his Board appeal rights, but fails to do so, as appears to be the case here, that failure may constitute good cause for a filing delay. Arrington v. Department of the Navy , 117 M.S.P.R. 301, ¶ 15 (2012) . In such cases, an appellant need not show that he acted diligently in discovering h is Board appe al rights; he need only show that he acted diligently in pursuing h is Board appeal rights once he discovered them. Id. Because the issue s of jurisdiction and timeliness appear to be intertwined, we find it is premature to address the timeliness issue her e. See Rosario -Fabregas , 122 M.S.P.R. 468, ¶ 22. The administrative judge should address the timeliness issue on remand, if necessary. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CARVELLI_ANTHONY_R_SF_3443_17_0504_I_1_REMAND_ORDER_2002295.pdf	2023-02-13	null	SF-3443	NP
3,558	https://www.mspb.gov/decisions/nonprecedential/FLEMING_KATHERINE_L_AT_1221_11_0460_B_3_FINAL_ORDER_2001598.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KATHERINE L. FLEMING , Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER AT-1221 -11-0460 -B-3 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Katherine L. Fleming , Homestead, Florida, pro se. Vicki V. Mott , Esquire, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon re cused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, which denied he r request for corrective action in this individual right of action (IRA) app eal. 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 remand initial decision contains erroneous findings of material fact; the remand 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 remand initial decision wer e not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not availa ble when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the remand initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Effective September 18, 2005, the agency appointed the appellant to a GS-11 Museum Curator position with the agency’s National Park Service, Everglades National Park (Everglades) , for a term not to exceed October 17, 2006, subject to her completion of a 1 -year trial period. Fleming v. Department of the Interior , MSPB Docket No. AT -1221 -11-0460 -W-1, Initial Appeal File (IAF), Tab 5, Subtab 4A. Effective June 24, 2006, the agency terminated the appellant for un acceptable behavior and unsatisfactory performance. Id., Subtabs 4B, 4C. After exhausting her remedies with the Office of Special Counsel, the appellant filed an IRA appeal and requested a hearing, alleging that her termina tion was in retaliation for protected whistleblowing activity . IAF, Tab 1. In support of her appeal, the appellant identified 15 disclosures, including her statement in a February 6, 2006 memorandum to her second -level supervisor (who also was the decidi ng official in the termination action) that she and a coworker had been exposed to toxic chemicals in October 2005 while painting 3 cannons at the Dry Tortugas National Park (Dry Tortugas) and that she had suffered injuries . IAF, Tab 1 3, Tab 15, Subtab O . ¶3 Without holding a hearing, t he administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s alleged disclosures either were not protected or could not have been a contributing factor to the personnel action. IAF, Tab 16 , Initial Decision . The Board vacated the initial decision, finding that the appellant had nonfrivolous ly alleg ed that her February 6, 2006 disclosure was protected and was a contributing factor to her termination under the “knowledge/timing” test, thus e stablishing Board jurisdiction . The Board therefore remanded the appeal for a hearing. Fleming v. Department of the Interior , MSPB No. AT -1221 -11-0460 -W-1, Remand Order at 8 -12 (Aug. 3, 2012); see Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113 , ¶ 8 (2011) (stating that once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on th e merits of his claim). ¶4 Following a hearing o n remand, the administrative judge den ied the appellant’s request for corrective action , finding that the appellant ’s February 6, 2006 disclosure was not protected because it revealed information that the deciding official already knew . Fleming v. Department of the Interior , MSPB No. AT -1221 -11-0460 -B-1, Remand File (B-1 RF), Tab 16, Remand Initial Decision ( B-1 RID) at 4. The administrative judge also found that, even assuming that the disclosure was pro tected and was a contributing factor to the appellant’s termination, the appellant was not entitled to corrective action because the agency proved by clear and convincing evidence that it would have terminated the appellant during her probationary period e ven in the absence of the disclosure. B-1 RID at 4 -6. ¶5 Afte r the appellant challenged the administrative judge’s decision, t he Board vacated the remand initial decision, finding that , based upon the Whistleblower Protection Enhancement Act of 2012, the appellant’s February 6, 2006 disclosure was protec ted even though it revealed information that the 4 deciding official already knew. Fleming v. Department of the Interior , MSPB No. AT -1221 -11-0460 -B-1, Remand Order at 1, 4 (July 7, 2014) (B-1 Remand Order) . The Board also found that , in analyzing whether the agency met its clear and convincing burden , the administrative judge improperly failed to evaluate the appellant’s evidence and arguments that her supervisor’s assertions about her performance and condu ct were unreasonable, as well as any other evidence that detracted from the agency’s claim that it terminated the appellant based only on her performance . Id. at 6-7 (citing Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012) (holding that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in th e record, and despite the evidence that fairly detracts from that conclusion” )). Accordingly, the Board remanded the appeal again for a new determination as to whether the agency proved by clear and convincing evidence that it would have terminated the ap pellant even in the absence of her protected whistleblowing activity. B-1 Remand Order at 6-7. ¶6 Following another hearing o n remand, the administrative judge den ied the appellant’s request for corrective action. Fleming v. Department of the Interior , MSPB Docket No. AT -1221 -11-0460 -B-2, Remand File, Tab 11, Remand Initial Decision ( B-2 RID ) at 1 -2, 7. The administrative judge found that the appellant showed that she made a protected disclosure and that her protected disclosure was a contributing fac tor to her termination under the knowledge/timing test . B-2 RID at 3. The administrative judge further found, h owever, that the agency showed by clear and convincing evidence that it would have taken the same personnel action even in the absence of whist leblowing. B-2 RID at 3-7. ¶7 The Board agreed with the administrative judge that the agency had met its clear and convincing burden and denied the appellant’s petition for review by final order . Fleming v. Department of the Interior , MSPB Docket No. AT-1221- 11-0460 -B-2, Final Order at 2, 11 (Sept. 22, 2015). The appellant filed a petition for judicial review of the Board’s decision with the U.S. Court of Appeals for the 5 Federal Circuit . Fleming v. Department of the Interior , MSPB Docket No. AT-1221 -11-0460 -L-1, Litigation File (LF) , Tab 2. The Federal Circuit affirmed the Board’s final decision in a nonprecedential opinion issued on May 9, 2016. Fleming v. Department of the Interior , 646 F. App’x 994 (Fed. Cir. 2016) ; LF, Tab 6 . ¶8 On July 15, 20 16, t he appellant obtained an audio recording of the second hearing in her Board appeal , which captured a conversation between the administrative judge and the court reporter during a pause in the hearing. LF, Tab 8. Based on th is conversation, in which the administrative judge expressed his views on the strength of the appellant’s case , the appellant filed a motion with the court requesting that it rescind its May 9, 2016 decision and re open her case . Id., Exhibit 5. On August 11, 2016, the Board filed a motion asking the court to vacate its May 9, 2016 decision and remand the case to the Board for further proceedings on the basis that the discussion between the administrative judge and the court reporter could give th e appearance of bias on the administrative judge ’s part. LF, Tab 9 at 6. The court granted the Board’s motion . Fleming v. Department of the Interior , No. 2016 -1247, slip op. (Fed. Cir. Aug. 30, 2016); LF, Tab 11. On remand, t he Board vacated its Septem ber 22, 2015 Final Order in MSPB Docket No. AT -1221 -11-0460 -B-2 and remanded the case to a different administrative judge in a different Board regional office for adjudication . Fleming v. Department of the Interior , MSPB Docket No. AT -1221 -11-0460 -M-1, Remand Order (Nov. 23, 2016) ; Fleming v. Department of the Interior , MSPB Docket No. AT -1221 -11-0460 -B-3, Remand File (B -3 RF) , Tab 1. ¶9 During a prehearing conference on remand, t he appellant stated that she did not want an additional hearing . B-3 RF , Tab 10, Remand Initial Decision ( B-3 RID) at 2. Based on the written record, the administrative judge denied the appellant’s request for corrective action, finding that the agency proved by clear and convincing evidence that it would have terminated the a ppellant absent her protected disclosure. B-3 RID at 14-15. The appellant has filed a petition for 6 review. Remand Petition for Review (RPFR) File, Tab 1. The agency has not responded.2 ANALYS IS ¶10 In determining whether an agency has shown by clear and co nvincing evidence that it would have taken the same personnel action in the absence of whistleblowing, 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 similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. Social Security Administra tion, 185 F.3d 1318 , 1323 (Fed. Cir. 1999).3 The Board does not view 2 About 4.5 years after the submission of her petition for review, the appella nt has filed what she titles a “Motion for leave to amend and supplement Petition for Review .” RPFR File, Tab 4 . In this motion, the appellant appears to reassert that the prior administrative judge showed bias when he was overheard discussing the strength of the appellant’s case with a court reporter ; therefore, she argues that the Board should not give deference to his credibility findings . Id. at 5 -7. She also asserts that she has amended and supplemental information demonstrating that the administrative judge improperly evaluated the credibility of the witnesses and improperly weighed the evidence that detrac ted from the agency’s claim that it terminated her based only on her performance in violation of the requirements of Whitmore , 680 F.3d at 1368 . Id. at 7-8. Once the record closes on review, no additional evidence or argument will be acce pted unless it i s new and material and was not readily available before the record closed. Maloney v. Executive Office of the President , 2022 MSPB 26 , ¶ 4 n.4; 5 C.F.R. § 1201.114 (k). T he appellant’s concerns about the prior administrative judge’s alleged bias, credibility findings, and improper weighing of the evidence were already addressed in the Board’s previous remand orders and resulted in the Board remanding the case to a different administrative judge in a different office for adjudication . See B-1 Remand Order at 6 -7; B-3 RF, Tab 1 . Thus, t he information the appella nt provides is not new and concerns matters already addressed and resolved by the Board. Accordingly, we deny the appellant’s motion . 3 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), appellants may file petitions for 7 the Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but will weigh the factors together to determine whether the evidence is clear and convincing as a whole. See Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489 , ¶ 36 (2015) , aff’d , 652 F. App’x 971 (Fed. Cir. 2016) . The strength of the agency’s evidence in support of the appellant’s termination. ¶11 Regarding the first Carr factor, the administrative judge reviewed the relevant documentary evidence and hearing testimony , and determined that there was strong evidence of the appellant’s conduct and performance deficiencies. B-3 RID at 14. In making this determination, t he administrative judge noted that the appellant’s immediate supervisor testified in both hearings that the appellant’s misconduct began shortly after she was hired, and the deciding official corroborated the supervisor’s testimony that she first approached him with her concerns about the appellant’s conduct at that time. B-3 RID at 5. The appellant’s supervisor also described the appellant’s misconduct in great detail in a January 13, 20064 memorandum to the deciding official proposing the appellant’s termination , and in a January 26, 2006 memorandum to the appellant proposing to suspend her for 3 days for failure to follow supervisory instructions.5 IAF, Tab 15, Subtabs 4L, 4N . In her January 13, 2006 memorandum, the judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent juri sdiction . 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. 4 Due to an apparent typographical error, the memorandum is incorrectly dated January 13, 2005. IAF, Tab 15, Subtab 4L. 5 As explained in the remand initial decision , after consulting with the agency’s Human Resources department, the deciding official determined t hat termination was too drastic and advised the appellant’s supervisor to propose suspending the appellant for her misconduct, in the hopes of correcting it . B-3 RID at 6. Accordingly, the appellant’s supervisor propos ed a 3-day suspen sion, which the dec iding official mitigated to a 2-day suspension by letter dated April 26, 2006, after considering the appellant’s written and oral replies. IAF, Tab 15, Subtab s 4N, 4O, 4S . 8 appellant’s supervisor stated that the appellant was insubordinate, failed to follow instructions, listened selectively, and ignored requests for information . Id., Subtab L at 1. She also asserted that the situation had become “untenable” and that the appellant’s presence was counterproductive to the museu m program. Id. at 1-2. In her January 26, 2006 memorandum, the appellant’s supervisor cited numerous examples of the appellant’s alleged misconduct , including the appellant’s failure to provide her supervisor information for the appellant’s performance p lan, her failure to come to the supervisor’s office when requested, and her failure to use the format for an inventory project that her supervisor had requested . IAF, Tab 15, Subt ab 4N. ¶12 Moreover, the record shows that the appellant’s misconduct continued even after the agency notified her of its decision to suspend her for it. As noted by the administrative judge , both the appellant’s supervisor and the deciding official testified that, after the agency issued the 2-day suspension, her supervisor notified the deciding official that the appellant continued to exhibit conduct and performance issues, including an apparent inability to make adequate progress on a project to reduce an archival backlog. B-3 RID at 8. ¶13 In addition, the appellant’s supervisor’s concerns about the appellant’s conduct and performance were shared by an experienced archivist from another National Park, who reviewed the appellant’s work at the deciding official ’s reque st. B-3 RID at 8. Following a 5-day site visit to Everglades in May 2006 , the archivist provided an assessment of the appellant’s conduct and performance in report s issued on May 31 and June 8, 2006. IAF, Tab 5, Subtab 4F at 3 -4; B-1 RF, Tab 7, Subtab 13 at 12 -16. In her June 8 report, the archivist stated that the appellant “seem[ed] to want to work in a vacuum” and was resistant to taking direction and imparting information . IAF, Tab 5, Subtab 4F at 3-4. The archivist also express ed concern that the Everglades might lose funding due to the appellant’s slow rate of progress on the archival project. Id. at 4. 9 ¶14 In analyzing the strength of the agency’s evidence in support of the appellant’s termination, the administrative judge also p roperly considered the appellant’s argument s, which she reiterates on review, that her conduct and performance w ere satisfactory and that any problems with her conduct or performance are attributable to the stress of working in the hostile environment that her supervisor created. B-3 RID at 12 -13; RPFR File, Tab 1 at 10 -11, 19, 22, 24-27. The administrative judge rejected this argument, finding that the deciding official had strong reasons to credit the supervisor’s account of the appellant’s conduct and performance problems and their potential impact on the agency’s mission, especially after her account was closely corroborated in key respects by an independent archivist. B-3 RID at 13. ¶15 The appellant challenges th is finding on review and argu es that the archivist’s evaluation was not an independent assessment of he r work. RPFR File, Tab 1 at 25. The appellant alleges that the archivist was apparently someone her supervisor knew and that the agency asked the archivist to review the appellant’s performance as part of a continuing effort to intimidate her and collect negative evidence to terminate her. Id. The appellant offers no evidence to support these bare allegations , and we find that the archivist’s reports strongly support the agency’s de cision to terminate the appellant. ¶16 Based on our review of the record, we agree with the administrative judge that the evidence in support of the agency’s decision to terminate the appellant was strong . B-2 RID at 14. The record shows that the appellant’s conduct issues began shortly after she was hired and continued unabated throughout her 9 -month tenure with the agency. These deficiencies are set forth in great detail in the appellant’s supervisor’s memoranda of January 13 and 26, 2006, the archivist’s reports of May 31 and June 8, 2006 , and the deciding official’s June 12, 2006 letter notifying the appellant of his decision to terminate her . IAF, Tab 5, Subtabs 4B, 4L, 4N; B -1 RF, Tab 7, Subtab 13 at 12 -16. Moreover, as noted in the remand initial decision, during both hearings , the appellant’s supervisor and 10 the deciding official confirmed the statements in the decision letter describing the appellant’s ongoing conduct and performance issues , and they consistently testified that these issues were the sole reason for her termination. B-3 RID at 12. While the appellant clearly disagrees with the administrative judge’s assessment of the strength of the evidence in support of her termination, she has shown no reason to o verturn his well -reasoned findings. The existence and strength of any motive to retaliate on the part of agency officials who were involved in the decision . ¶17 Regarding the second Carr factor, w e have found that “[t]hose responsible for the agency’s performa nce overall may well be motivated to retaliate even if they are not directly implicated by the disclosures . . . as the criticism reflects on them in their capacit ies as managers and employees.” Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶ 65 (quoting Whitmore , 680 F.3d at 1370 ); Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28 -29 (same) . The administrative judge recognized that , given their role as representatives of the agency’s general institutional interests , the appellant’s supervisor and the deciding official may have had a motive to retaliate against the appellant . B-3 RID at 14. The administrative judge found, however, that the record did not contain any affirmative evidence that these officials had a motive to retaliate. Id. We agree that, while these agency officials may have had some motive to retaliate, the record does not reflect that any such motive was strong. In particular, the administrative judge found that neither the appellant’s supervisor nor the deciding official was implicated in the appellant’s disclosure of alleged safety violations at Dry Tortugas in October 2005, as it is undisputed that the appellant’s supervisor was not responsible for the cannon painting pro ject, which was under the command of a separate National Park authority. ID at 14 n.1. ¶18 On review, the appellant alleges that th e administrative judge’s determination that he r supervisor was not responsible for the cannon painting project “belies the facts.” RPFR File, Tab 1 a t 17. The appellant c laims that, 11 although an official from a different park was responsible for overseeing the proper treatment of the cannons, her supervisor was “in charge ,” as she ordered the materials for the project , issued work assignments and schedules , and supervised the Everglades employees working on the project . Id. Even assuming arguendo that the appellant’s disclosure implicated the appellant’s superv isor to some extent , we find that the strong evidence in support of the agency’s action outweighed any possible motive to retaliate on the part of the agency of ficials who were involved in terminatin g the appellant . Evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. ¶19 As to the third Carr factor, the administrative judge found that there was no evidence that the agency treated nonwhistleblow ing employees differently than the appellant for similar conduct. B-3 RID at 14. H e noted that the only evidence pertaining to the trea tment of similarly situated non whistleblow ing employees was the appellant’s contention that her supervisor subjected a nonwhistleblowing coworker to the same kind of mistreatment that she allegedly received. Id. The administrative judge found that such evidence indicates that the appellant’s supervisor’s supervisor y depredations were unrelated to the appellant’s whistleblowing . Id. ¶20 The appellant challenges this finding on review, arguing that the supervisor’s mistreatment of her nonwhistleblowing coworker does not reveal anything about her supervisor’s motives; only that she was vindictive and highly likely to retaliate against those whom she supe rvised. RPFR File, Tab 1 at 21-22. The key issue in this appeal, however, is not whether the appellant’s supervisor mistreated the appellant , but whether the alleged mistreatment occurred in retaliation for the appellant’s whistleblowing activit y. Assum ing that the appellant’s allegations that he r supervisor mistrea ted both her and her nonwhistleblowing coworker are true, such mistreatment indicates that the supervisor treated her employees poorly regardless of whether they were 12 whistleblowers , i.e., tha t her purported mistreatment of the appellant was not based on her whistleblowing. Thus, we agree with the administrative judge ’s analysis of the third Carr factor. ¶21 In sum, although agency officials involved in the termination decision may have had some motive to retaliate against the appellant for her protected disclosure , the evidence in support of th e decision to terminate her was strong and there is no evide nce that the agency treated non whistleblowing employees differently for similar misconduct. Therefore, we agree with the administrative judge that the agency established by clear and convincing evidence that it would have terminated the appellant even in the absence of he r February 6, 2006 disclosure. B-3 RID at 14. Accordingly, we affirm the remand initial decision denying the appellant’s request for corrective action.6 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 righ ts, the Merit Systems Protection Board does not provide legal advice on which 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 jurisdic tion. If you wish to seek 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 dism issal of your case by your chosen forum. 6 We have reviewed the relevant legislation enacted during the pendency of this app eal and have concluded that it does not affect the outcome of the appeal. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 13 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is 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 14 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a 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) . You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 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: 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) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 16 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide 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	FLEMING_KATHERINE_L_AT_1221_11_0460_B_3_FINAL_ORDER_2001598.pdf	2023-02-10	null	AT-1221	NP
3,559	https://www.mspb.gov/decisions/nonprecedential/PINLAC_ANTONIO_T_SF_0831_16_0800_I_1_FINAL_ORDER_2001602.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTONIO T. PINLAC, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0831 -16-0800 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rufus F. Nobles, I , Zambales, Philippines, for the appellant. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his application for deferred retirement under the Civil Service Retirement System (CSRS) . Generally, we grant petitions such as this one only 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneou s application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error af fected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED by this Final Order to find that the appellant did not seek to make a deposit into the Civil Service Retirement and Disability Fund (Fund), we AFFIRM the initial decision . BACKGROUND ¶2 The administrative judge made the following factual findings, which the parties do not dispute on review. The appellant form erly worked as a civilian employee of the Department of the Navy (Navy) in Subic Bay, Ph ilippines. Initial Appeal File (IAF), Tab 2 at 10; Tab 3, Initial Decision (ID) at 2. He received an indefinite appointment as a Refrigeration and Air Conditioning Mechanic on October 20, 1965, and his appointment was converted to an excepted service -indefinite appointment on September 25, 1966. IAF, Tab 2 at 11. Based on the single Standard Form 50 (SF -50) submitted below, the appellant appears to have served in this excepted service -indefinite appointment u ntil his resignation on December 26, 1977. Id. The SF -50 documents the appellant’s retirement plan coverage as “4” and “none.” Id. at 10 -11. 3 ¶3 On July 22, 2014, the appellant applied for a deferred retirement annuity under the CSRS based on his service with the Navy from October 20, 1965, to Decem ber 26, 1977.2 OPM issued a reconsideration decision denying his application. Id. at 6-7. The appellant appealed OPM’s reconsideration decision to the Board , and he declined a hearing on the appeal.3 The administrative judge issued an initial decision affirming OPM’s reconsideration decision. ID at 11. She found that , although the appellant had sufficient credi table Federal service, he was not eligible for a deferred annuity because he failed to show that any of that service was performed in a positio n covered under the CSRS. ID at 10 -11. ¶4 The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. OPM has filed a response in opposition to his petition. PFR File, Tab 4. DISCUSSIONS OF ARGUM ENTS ON REVIEW ¶5 The appellant, as an applicant, has the burden of proving his entitlement to an annuity. Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 140-41 (Fed. Cir. 1986). To qualify for a civil service retirement annuity, a Government employee must complete at least 5 years of creditable service with at least one of the last 2 years of his Federal service in a “covered” position. 5 U.S.C. § 8333 (a)-(b); Quiocson v. Office of Personnel Management , 490 F.3d 1358 , 1360 (Fed. Cir. 2007). Covered service includes only an appointment that 2 The administrative judge characterized the appellant ’s appeal as also seeking the right to make a deposit to the Fund. ID at 3 -4. This characterization was consistent with OPM’s interpretation of a letter that the appellant submitted with his deferred annuity application. IAF, Tab 2 at 4-7. However, the record reflects that his argument was that he was not required to make such a deposit to be eligible for an annuity. IAF, Tab 1 at 3, Tab 2 at 14 -16; Petition for Review File, Tab 1 at 1. Accordingly, we modify the initial decision to find that the appellant only applied for a deferred annuity . 3 This appeal was originally consolidated with seven other simultaneously filed appeals making vir tually identical claims , but the administrative judge terminated the consolidation on the same date that she issued the initial decision. ID at 1 n.1; see Eight Philippine Retirement Applicants v. Office of Personnel Management , MSPB Docket No. SF -0831 -16-0806 -I-1, Consolidation Appeal File, Tab 6. 4 is subject to the CSRS and for which an employee must therefore deposit part of his pay into the Fund. Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301, ¶ 7 (2011) . ¶6 The administrative judge issued an initial decision affirm ing OPM’s reconsideration decision based on her finding that the appellant was not eligible for a CSRS annuity because he had not served in a position covered by the CSRS. ID at 7 -11. On review, the appellant appears to argue that his service was covered because 5 C.F.R. § 831.303 (a), a regulation issued in 1983, “retroactively vested the CSRS deposit” to his prior service. PFR File, Tab 1 at 2-16. He also argues that the retirement system available to employees hired pursuant to the Filipino Employees Person nel Instructions (FEPI) is not another retirement system for Government employees that would preclude his coverage under the CSRS. Id. at 16-17. In addition, he submits documents with his petition for review.4 For the reasons discussed below, we agree w ith the administrative judge’s decision to affirm OPM ’s reconsideration decision. ¶7 Well -established principles of law preclude this appellant from qualifying for a deferred retirement annuity. Temporary and indefinite appointments ar e excluded from CSRS co verage. Quiocson , 490 F.3d at 1360; Encarnado , 116 M.S.P.R. 301, ¶ 8; 5 C.F.R. § 831.201 (a)(1) -(2), (6), ( 13)-(14). The appellan t’s reliance on 5 C.F.R. § 831.303 (a) is misplaced, as that section addresses only whether service is creditable, not whether it is covered. See Tate v. Office of Personnel Management , 109 M.S.P.R. 57, ¶¶ 7-8 (2008) (explaining that section 831. 303(a) provides CSRS credit for pre -1969 Federal service). 4 We decline to consider these new documen ts on review. The appellant has not indicated why these documents, which are dated 1959, 1980, 1985, and 1992, were not available below despite his due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (explaining 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 absent a showing that it was unavailable before the record was closed despite the party ’s due diligence) . 5 Further, 5 U.S.C. § 8334 (c), which permits certain individuals to make deposits, does not support the appellant’s claims. S ection 8334(c ) applies only to individuals who, unlike the appellant, have covered service ; in other words, service during which contributions to the Fund were withheld. Muyco v. Office of Personnel Management , 114 M.S.P.R. 694, ¶¶ 12-13 (2010); 5 C.F.R. § 831.112 (a)(2) (interpreting section 8334(c) as permitting an individual who occupied a position “in which retirement deductions were properly withheld” to make a deposit or redeposit). The appellant has not alleged that such contributions were withheld. ¶8 The appellant’s argument regarding the FEPI is likewise unavailing. Receipt of retirement benefits under a non -CSRS plan, such as the FEPI, indicates that service is not covered.5 Espiritu v. Office of Personnel Management , 114 M.S.P.R. 192, ¶ 8 (2010), aff’d per curiam , 431 F. App’x 897 (Fed. Cir. 2011). Section 8331(1) (L)(ii) of Title 5 provides that an employee who received benefits under a non -CSRS plan available to Government employees does not have covered service. Quiocson , 490 F.3d at 1360. The U.S. Court of Appeals for the Federal Circuit has found the FEPI to be such a retirement system, and the appellant has provided no evidence to the contrary. Id.; PFR Fi le, Tab 1 at 16-18. ¶9 Accordingly, we deny the appellant’s petition for review and affirm the initial decision , as modified . 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 5 Here, because the record reflects that the appellant’s retirement coverage was “none,” there is no indication that he was covered under the FEPI. 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 your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all fil ing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 7 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any a ttorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and tha t such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 8 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhan cement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 9 competen t jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 Contact information for the courts of appeals can be 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	PINLAC_ANTONIO_T_SF_0831_16_0800_I_1_FINAL_ORDER_2001602.pdf	2023-02-10	null	SF-0831	NP
3,560	https://www.mspb.gov/decisions/nonprecedential/TODD_HEATHER_DE_0752_16_0409_I_1_FINAL_ORDER_2001626.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD HEATHER TODD, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0752 -16-0409 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peter F. Carroll , Esquire, Kalispell , Montana, for the appellant . Alexandra M. Felchlin , Denver, Colorado, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which reversed her removal but denied her affirmative defenses . Generally, we grant petitions such as this one only in the following circumstances: the initial decision conta ins erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of 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 peti tioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the appellant has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final de cision. 5 C.F.R. § 1201.113 (b). ¶2 The following facts, as further detailed in the initial decision, are not disputed. The agency hired the appellant in October 2015, under reinstateme nt authority. Initial Appeal File (IAF), Tab 29, Initial Decision (ID) at 2. The agency removed her in June 2016 , without due process, under the mistaken belief that she was a probationary employee. ID at 2 -3. Its cited reasons for the removal were (1) excessive leave usage, (2) unauthorized absence, and (3) failure to adhere to the sick leave certification requirements that had been imposed by the agency. ID at 2. After the appellant filed the instant Board appeal, the agency recognized its mistake, rescinded the notice of termination, and instructed her to return to duty. Id. ¶3 Because the appellant waived her right to a hearing, the administrative judge issued a decision based on the written record. She reversed the appellant’s removal based on the agency’s admitted due process violation, but denied the appellant’s affirmative defenses of harmful procedural error and disability discrimination. ID at 3 -4, 6-12. The administrative judge ordered the agency to cancel the removal and retroactively resto re the appellant, effective June 28, 2016. ID at 12 -13. 3 ¶4 The appellant has 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 4 -5. The appellant’s harmful er ror claim is moot. ¶5 We first note that the agency concedes that its removal action must be reversed, based on its admitted due process violation. IAF, Tab 18 at 1, Tab 19 at 9. Accordingly, while the appellant has reasserted her harmful procedural error affirmative defense on review, PFR File, Tab 1 at 4 -7, that matter is moot. Even if the appellant could prove that the agency committed a harmful error, it would not result in any additional relief beyond that which is required for its due process violatio n. See, e.g ., Carter v. U.S. Postal Service , 75 M.S.P.R. 51 , 55 n.4 (1997) (acknowledging but not ruling on an appellant’s harmful error claims because the appellant’s removal had to be reversed for other reasons); Hejka v. U.S. Marine Corps , 9 M.S.P.R. 137 , 140 (1981) (same); see also Goeke v. Department of Justice , 122 M.S.P.R. 69 , ¶¶ 23 -27 (2015) (finding that the appellants proved their harmful pro cedural error claim and, as a result, ordering cancellation of the agency’s adverse action). ¶6 Although the agency’s admission of the due process violation does render some issues moot, it does not render the case moot because live issues remain. Here, tho se live issues include the appellant’s restoration to the status quo ante and any claim for damages that are within the Board’s jurisdiction. See Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶¶ 8, 19 (2016) (recognizing that an agency’s rescission of an action appealed does not render the appeal moot if that rescission fails to afford all relief available before the Board, including status quo ante relief and compensatory damages for discrimination claims). The appellant has failed to prove that the agency engaged in disability discrimination. ¶7 The appellant presented general allegations below, which the administrative judge construed as an affirmative defense of disability discrimination. IAF, 4 Tab 7 at 1, Ta b 18 at 3. She found that while the record supported the existence of disabling conditions, post -traumatic stress disorder and gastritis, the appellant failed to meet her burden of proving that the agency engaged in disability discrimination. ID at 9 -12. ¶8 Most notably, the administrative judge found neither the appellant nor the pertinent agency officials were even aware of the appellant’s disabilities until after her termination, when she received treatment and diagnoses. ID at 9 -10; IAF, Tab 19 at 83, 85, 87, Tab 26 at 15, 18. The administrative judge further found that the appellant did not request any accommodation and agency officials were unaware of any need for one. ID at 9; see Paris v. Department of the Treasury , 104 M.S.P.R. 331, ¶ 17 (2006) (recognizing that a disability discrimination claim for failure to accommodate will fail if the employee never requested accommodatio n while employed). Although the appellant had taken a notable amount of sporadic leave prior to her termination, the administrative judge concluded that the timing and reasons given for the leave did not give rise to an inference of disability or need for accommodation. ID at 10; IAF, Tab 12 at 24-25, Tab 19 at 18 -21. The administrative judge also concluded that even if pertinent agency officials had perceived her as disabled, the appellant did not present any evidence that suggested discriminatory animu s. ID at 10; see Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 28 -29 (2016) (explaining that an appellant may r ely on various types of evidence that the Board will evaluate as a whole, including direct evidence or any of the three types of indirect evidence, i.e. , pretext, comparator, or other bits and pieces that present a “convincing mosaic ” of discrimination) , clarified by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-24. While the appellant argued that her supervisor withheld information concerning Family and Medical Leave Act (FMLA) leave or other helpful programs, the administrative judge correctly concluded that the record reflected the opposite, as those officials repeatedly offered the appellant various resources such as the Employee Assistance Program 5 and a Human Resource Specialist who could provide FMLA assistance. ID at 10-11; IAF, Tab 12 at 24 -25, 29 -30, Tab 19 at 14. ¶9 In reasserting her disability discrimination claim on review, the appellant has presented a number of conclusory assertions, without identifying any supportive evidence. PFR File, Tab 1 at 7 -12; see 5 C.F.R. § 1201.115 (a) (requiring that a petition for review identify specific evidence in the record demonstrating any alleged erroneous findings of material fact and explain why the challenged factual determinations are incorrect); see also Tines v. Department of the Air Forc e, 56 M.S.P.R. 90 , 92 (1992) (explaining that a petition for review must contain sufficient specificity for the Board to ascertain wheth er there is a serious evidentiary challenge justifying a complete review of the record). Moreover, many of the conclusory assertions have little or no bearing on a disability discrimination analysis. For example, the appellant argues that the agency trea ted her differently because of the mistaken belief that she was a probationary employee. PFR File, Tab 1 at 7 -9. Even if true, that has no apparent bearing on the limited issue before us – whether the agency was improperly motivated by the appellant’s di sability when it terminated her or failed to provide her w ith reasonable accommodation.2 See Forte v. Department of the Navy , 123 M.S.P.R . 124, ¶¶ 27 -33 (2016) (discussing a disability discrimination claim in the context of disparate treatment allegations); Clemens v. Department of the Army , 120 M.S.P.R. 616 , ¶¶ 10 -17 (2014) (discussing a disability discrimination claim in the context of an alleged failure to accommodate). ¶10 The appellant also argues that the agency, particularly her immediate supervisor, imprope rly discriminated against her on the basis of “dislike.” PFR 2 Because we affirm the administrative judge’s finding that the appellant failed to show that disability discrimination was a motivating factor in her termination, we need not resolve the issue o f whether the appellant prove d that discrimination was a “but-for” cause of the agency’s decision. See Pridgen , 2022 MSPB 31 , ¶¶ 20-22, 40 -42. 6 File, Tab 1 at 5, 8. According to the appellant, she was subjected to acts such as nasty looks, harassment about her time, loss of responsibilities, and being left out. Id. at 9. But again, t he limited issue before us is whether the agency engaged in disability discrimination. See generally Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 15 (2011) (recognizing that an employee is not guaranteed a work environment free of stress, criticism, or difficult working conditions), aff’d , 469 F. App’x 852 (Fed. Cir. 201 1). Therefore, we have only considered the appellant’s al legations in that context and find no basis for determining that these conclusory assertions evidence disability discrimination. ¶11 Similarly, while the appellant appears to suggest that the agency should have offered her a reasonable accommodation, PFR Fil e, Tab 1 at 10 -12, she has failed to identify any evidence showing that agency officials were even aware of her disability, much less informed that she required accommodation. As the administrative judge recognized, the agency presented evidence to the co ntrary, including sworn statements from the appellant’s supervisor, a Human Resources Specialist, and the person who signed the appellant’s mistaken probationary termination, all of which indicated that they had no knowledge of the appellant having any dis ability or requiring any accommodation. IAF, Tab 19 at 79‑87. Moreover, while the appellant generally alludes to accommodation, she has not identified what kind of accommodation she needed. See Gardner , 123 M.S.P.R. 647, ¶ 35 (recognizing that, for a disability discrimination claim based on a failure to accommodate, an appellant’s bu rden includes showing, to the extent possible, that there was a reasonable accommodation under which she could perform the essential duties of her position or of a vacant position to which she could be reassigned). ¶12 The appellant’s petition for review generally reflects frustration with her termination, which the agency acknowledges was improper for other reasons. However, the appellant has not shown that her probationary termination was improperly motivated by disab ility discrimination, or that the agency improperly 7 failed to accommodate her. The record before us suggests that the probationary termination was solely motivated by legitimate nondiscriminatory leave issues which were both identified in the termination notice and well documented throughout the appellant’s limited tenure. IAF, Tab 12 at 13 -15. Among other things, that evidence includes various contemporaneous documents showing that the agency continually expressed concerns with the appellant’s extensive leave usage and failure to follow leave procedures, beginning as early as 2 months after her hire date. IAF, Tab 12 at 24 -26, 29 -31, Tab 19 at 12 -17. If the appellant believes the agency has failed to comply with this Final Order to cancel her removal and retroactively restore her, she should file a petition for enforcement with the Denver Field Office. ¶13 On review, the appellant presents several other arguments which are difficult to follow, but appear to present allegations concerning a possible complia nce matter. She seems to assert that there has been some problem with her reinstatement, which she simultaneously attributes to agency retaliation and an inability to return to work due to her ongoing medical limitations.3 PFR File, Tab 1 at 13 -15. The appellant also summarily asserts that the agency has provided only a quarter of the back pay she is owed. Id. at 15. The agency responded with argument and evidence, indicating that it provided back pay for the period between her improper termination on June 28, 2016, and September 14, 2016, when she was instructed to return to duty as the agency attempted to correct its improper termination. PFR File, Tab 4 at 6, 10 -18; IAF, Tab 12 at 10. ¶14 The Board’s regulations provide that a “party may petition . . . for enforcement of a final decision or order issued under the Board’s appellate jurisdiction.” 5 C.F.R. § 1201.182 (a) (emphasis added). Because the appellant 3 The record suggests that the appellant at least considered entering into some sort of settlement with the agency because she was either unwilling or medically unable to return to her former position. IAF, Tab 10 at 3, Tab 14 at 7, Tab 17 at 1. I t furthe r suggests that the appellant may not have reported to duty, despite the agency’s instruction to do so. IAF, Tab 16 at 2. 8 filed a petition for revi ew, the initial decision will not become final until we issue the instant order. See 5 C.F.R. §§ 1201.113 (a) (explaining that an initial decision by an administrative judge will become the Board’s final decision 35 days after issuance unless a party files a petition for review), 1201.113(b) (explaining that, if a party files a petition for review, the initial decision becomes final when the Board issues its last decision denying the peti tion for review). Therefore, to the extent that the appellant’s petition for review contains arguments pertaining to compliance, those arguments are premature. See Lucas v. Department of Defense , 64 M.S.P.R. 172 , 177 -78 (1994) (explaining that if an appellant had filed a petition for enforcement after the agency had notified him that it had canceled his removal but before the Board had issued its final order in the associate appeal, the petition would have been dismissed as premature), overruled on other grounds by Fischer v. Department of the Treasury , 97 M.S.P.R. 546 (2004). ¶15 If the appellant believes that the agency has failed to comply with this final order to cancel her removal and retroactively restore her, she should file a petition for enforceme nt with the Denver Field Office, where that issue must first be adjudicated. 5 C.F.R. § 1201.182 (a). ORDER ¶16 We ORDER the agency to cancel the removal and to retroactively restore the ap pellant effective June 28, 2016. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this acti on no later than 20 days after the date of this decision. ¶17 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calend ar 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 car ry out the 9 Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶18 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress . See 5 C.F.R. § 1201.181 (b). ¶19 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforce ment with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶20 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 ‑day per iod set forth above. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such 4 Since the issuance of the initial decision in this matter, the Board has updated the notice of review rights included in final deci sions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide l egal advice on which 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 ca refully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court withi n 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (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. 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was 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 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 12 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office 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 personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) ,” then you may file a 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 jurisdicti on expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 13 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.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. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link belo w: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job under taken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decis ion. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings document ation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of t he period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 ‑7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	TODD_HEATHER_DE_0752_16_0409_I_1_FINAL_ORDER_2001626.pdf	2023-02-10	null	DE-0752	NP
3,561	https://www.mspb.gov/decisions/nonprecedential/WILSON_CARRA_VAUGHN_NY_315H_22_0055_I_1_FINAL_ORDER_2001628.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARRA VAUGHN WILSON, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER NY-315H -22-0055 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Carra Vaughn Wilson , Buffalo, New York, pro se. Alexander Glossman , New York, New York, for the agency. BEFORE Cathy A. Harris, Vice Chair man Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination appeal for lack of jurisdiction . On petition for review, the appellant does not challenge the administrative judge’s findings and alleges only that she contracted COVID -19 before she was 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 terminated for attendance issues and did not receive COVID pay . Petition for Review File, Tab 1 at 3. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, de spite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully consider ing the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL 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 follo wing summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding w hich cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applica ble time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particul ar forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional i nformation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rule s of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pr o bono representation for Merit Systems Protection Board appellants before the 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 E EOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discriminatio n. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 dec ision before you do, then you must file with the district 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 di sabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district cou rts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may reque st review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC ’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this de cision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 O perations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law 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 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	WILSON_CARRA_VAUGHN_NY_315H_22_0055_I_1_FINAL_ORDER_2001628.pdf	2023-02-10	null	NY-315H	NP
3,562	https://www.mspb.gov/decisions/nonprecedential/WALLACE_LISA_CH_3330_16_0444_I_1_FINAL_ORDER_2001639.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LISA WALLACE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-3330 -16-0444 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lisa Wallace , Steger, Illinois, pro se. Janet M. Kyte , Esquire , Hines, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed in part and denied in part her request for corrective action in connection with her Veterans Employment Opportunities Act (VEOA) appeal. 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 requi red to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 circumstances: the initial decision co ntains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the p etitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the fil ings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final deci sion. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant , a preference -eligible veteran , Initial Appeal File (IAF), Tab 4 at 42, 44, is currently employed by the agency as a GS -11 Program Specialist , having been r eassigned to that position on January 24, 2016 , from her former position as a GS -11 Readjustment Counseling Therapist , id. at 39. On April 28, 2016, s he filed a VEOA appeal in which she alleged that she had applied for three positions with the agency in 2012, 2014, and 2015, and that the same selecting official violated her veterans’ preference rights by not selecting her. Wallace v. Department of Veterans Affairs , MSPB Docket No. CH -3330 -16- 0363 -I-1, Initial Appeal File (0363 IAF), Tab 1 at 5. In a June 3, 2016 initial decision, the administrative judge found that, as to the 2012 and 2014 nonselections, the appellant did not show that she had first exhausted her administrativ e remedies with th e Department of Labor (DOL) , and she, therefore , dismissed the VEOA appeal as to those two nonselections for lack of jurisdiction. 0363 IAF, Tab 10 at 5. The administrative judge found that the Board had 3 jurisdiction over the appellant’s appeal as to the 2015 nonselection because she exhausted her remedy with DOL and nonfrivolously alleged that she is a preference eligible, that the nons election took place after the VEOA’s October 30, 1998 enact ment date, and that the agency violated her right to veterans’ preference in connection with the n onselection. Id. The administrative judge further found, however, that the appellant filed her appeal 52 days after the date she received DOL ’s results of its investig ation into her complaint, 37 days after the 15 -day statutory deadline, and therefore , as to the 2015 nons election, the administrative judge dismissed the appeal as untimely filed. Id. at 5-6. The initial decision became a final decision of the Board when neither party filed a petition for review. Id. at 7. ¶3 In this VEO A appeal, the appellant challenged the same three nons elections. IAF, Tab 1 at 5. In addition, s he alleged that she was notified on April 18, 2016 , that she also was not selected for the GS-12 position of Supervisory Readjust ment Counseling Therapist for which she had applied , id. at 8-9, and she appeared to question the qualifications of the selectee, id. at 5. Although the appellant did not submit a copy of the May 9, 2016 complaint sh e filed with DOL, she did submit a copy of DOL’s May 23, 2016 closure letter stating that it had determined that the evidence did not support her allegation that the agency had violated her veterans’ preference rights regarding the nons election . Id. at 10 . In her appeal , the appellant al so al leged that, in no t selecting her, the agency discriminated against her as a Black female disabled veteran. Id. at 5. She requested a hearing. Id. at 2. ¶4 The administrative judge issued an Order on VEOA Jurisdiction and Notice of Proof Requirements, IAF, Tab 3, to which the appellant responded, IAF, Tab 4. The agency moved to dismiss certain portions of the appeal , specifically, the part s relating to the 2 012, 2014, and 2015 nons elections, on the basis that t hey duplicated the appellant’s previous appe al that itself had been dismissed. IAF, Tab 6. Regarding the 2016 nons election, the agency argued that it did not violate 4 the appellant’s veterans’ preference rights and that , therefore , that portion of the appeal should be dismissed as well. IAF, Tab 7. The administrative judge issued another Order on Jurisdiction in which she first explain ed that review of the 2012, 2014 , and 2015 nons elections was barred by the doctrine of collateral estoppel. IAF, Tab 8 at 3 -4. She then found that the appellant had established the Board’s jurisdiction as to the 2016 nons election , id. at 5-7, but that, because there was no genuine dispute of material fact, the requested hearing would not be convened , see Haasz v. Department o f Veterans Affairs , 108 M.S.P.R. 349 , ¶ 9 (2008); IAF, Tab 9. Instead , the administrative judge set a date for the close of record , IAF, Tab 9 , but neither party made any further submissions. ¶5 In an initial decision based on the written record, the administrative judge first found that, as to the 2012, 2014, and 2015 nons elections, the jurisdictional and timeliness rulings made in the appellant’s first appeal barred her , based on collateral estoppel, from raising those claims again in this appeal , and, as to those actions, the administrative judge dismissed the appeal for lack of jurisdiction . Ford v. U.S. Postal Service , 118 M.S.P.R. 10, ¶ 11 (2012); IAF, Tab 10, Initial Decision (ID) at 4 -5. As to the 2016 nons election over which she found that the Board has juri sdiction, the administrative judge first noted that the Board lacks jurisdiction to consider the appellant’s allegations of discrimination. Dale v . Department of Veterans Affairs , 102 M.S.P.R. 646 , ¶ 18(2006); ID at 8. In addressing the merits of the claim, t he administrative judge found that the appellant failed to prove by preponderant evidence that her 2016 nons election violated her rights under a statute or regulation relating to veterans’ preference , 5 U.S.C. § 3330a (a)(1)(A), or that she was denied the right to compete for that position, 5 U.S.C. § 3330a (a)(1)(B) ; 5 U.S.C. § 3304 (f)(1) , and therefore as to th e 2016 nons election, the administrative judge denied corrective action . ID at 10-12. ¶6 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3. 5 ANALYSIS ¶7 The appellant does not, on review, challenge the administrative judge’s dismiss al of her appeal reg arding th e 2012, 2014, and 2015 nons elections for lack of jurisdiction based on collateral estoppel . PFR File, Tab 1 at 4. Nor do we discern any reason to disturb that finding. The issues of the Board’s lack of jurisdiction over the 2012 and 2014 nons elections b ased on a lack of proof of exhaustion by the appellant , and the untimeliness of her appeal of the 2015 nons election, are identical to those involved in the earlier a ction; t he jurisdictional and timeliness issues were l itigated in the previous act ion; t he previous judgment on those matters was necessary to the resulting judgment; and the appellant, as the party precluded, had a full and fair opportunity to litigate the issues in the previous action. Therefore, the administrative judge properly fou nd that relitigation of the appellant’s appeal regarding those three nons elections is precluded under the doctrine of collateral estoppel , see Ford , 118 M.S.P.R. 10, ¶ 11, and that that portion of the appeal must be dismissed for lack jurisdiction , see Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 7 (2003). ¶8 Regarding the 2016 nons election, the appellant argues as she did below that the selectee was on acti ve duty when he was selected and therefore was not a veteran . PFR File, Tab 1 at 4. The agency acknowledges th at th e selectee was on active -duty status at the time , PFR File, Tab 3 at 5 -6, but dispute s the appellant’s claim as to his status as a veteran, IAF, Tab 7 at 7. ¶9 We need not resolve this matter because , as a matter of law, the appellant cannot obtain corrective action under VEOA relating to the 2016 nonselection. The record establishes that the agency sought to fill the 2016 vacancy to which the appellant applied through the merit promotion process. IAF, Tab 7 at 21, 46. When an agency uses the merit promotion process, any veterans’ preference points under the competitive appointment process to which the appellant is entitled do not apply. See Joseph v. Federal Trade Commission , 505 F.3d 1380 , 1382 -83 (Fed. Cir. 2007); Perkins v. U.S. Postal Service , 100 M.S.P.R. 48, ¶ 9 6 (2005). Thus, the appellant cannot receive corrective action under 5 U.S.C. § 3330 a(a)(1)(A). ¶10 Further, in Kerner v. Department of the Interior , 778 F.3d 1336 (Fed. Cir. 2015), the U.S. Court of Appeals for the Federal Circui t (Federal Circuit) found that, when an agency uses a merit promotion process to fill a position, the “right to compete” provisions in 5 U.S.C. § 3304 (f)(1) do not apply when the applicant is a vet eran who is already employed in the Federal civil service. 778 F.3d at 1338 -39. The Board is bound by this finding. See Oram v. Department of the Navy , 2022 MSPB 30 , ¶¶ 13, 15 -17. Here, it is undisputed that the appellant was employed in the Federal civil servic e when she applied for the vacancy at issue in 2016. IAF, Tab 1 at 1. Thus, as a matter of law, the appellant is not entitled to recovery on a claim that she was denied a right to compete. See 5 U.S.C. § 3330a (a)(1)(B); Oram , 2022 MSPB 30 , ¶ 17. Accordingly, we agree with the administrative judge’s decision to deny the appellant’s request for corrective action under VEOA regarding her 2016 nonselection .2 ¶11 Based on the foregoing, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final deci sion. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 2 Any error on the part of the administrative judge in discussing the merits of a right to compete claim under 5 U.S.C. § 3304 (f)(1) in li ght of the Federal Circuit’s decision in Kerner did not prejudice either party’s rights and thus provides no basis to reverse the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). 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 notic e, the Board cannot advise which option is most appropriate in any matter. 7 appropriate for your situation and the rights desc ribed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 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 8 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that 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 decisi on. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 9 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC v ia commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Wh istleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circ uit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 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 for Merit Systems Protection Board appellants before the 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	WALLACE_LISA_CH_3330_16_0444_I_1_FINAL_ORDER_2001639.pdf	2023-02-10	null	CH-3330	NP
3,563	https://www.mspb.gov/decisions/nonprecedential/LATTA_RASHID_PH_0752_17_0007_I_1_FINAL_ORDER_2001653.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RASHID LATTA, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER PH-0752 -17-0007 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas J. Gagliardo , Esquire, Baltimore, Maryland, for the appellant. Mark Ledford , Laura M. Gagliuso , and Stanley Todman , Baltimore, Maryland, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , 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 pursuant to a last chance settlement agreement. On review, the appellant argu es that he made 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 nonfrivolous allegation that he complied with the agreement, that the administrative judge misinterpreted the agreement, and that the administrative judge failed to draw the correct inferences from his medical documentation. 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 this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we D ENY the petition for review. Except as expressly MODIFIED to address whether the waiver clause containe d in the last chance settlement agreement was adequate to divest the Boar d of jurisdiction over this appeal, we AFFIRM the initial decision. ¶2 During t he adjudication of a prior Board appeal, the parties reached a last chance settlement agreement , Initial Appeal File (IAF), Tab 4 at 32 -41, under which terms the appellant agreed to be on leave restriction for 12 months , to follow all specified leave and l eave -requesting procedures, and to provide medical documentation “for any medical appointmen ts and illness related absences,” id. at 35, ¶¶ 2.j-k. The agency agreed to rescind the underlying action , and the appellant agreed to withdraw his appeal and not engage in any additional litigation over the matter. Id. at 33 -34, ¶¶ 2.a-d; 35-36, ¶ ¶ 3.a-b, d. The agreement further provided, “[The appellant’s] failure to comply with all of the provisions of this Agreement will result in his removal from Federal ser vice with 3 no advance notice period and no appeal rights.” Id. at 33, ¶ 1. Based on the settlement agreement, the administrative judge entered the agreement into the record and dismissed the appeal as settled. Latta v. Social Security Administration , MSP B Docket No. PH -0752 -15-0052 -I-1, Initial Decision at 1-2 (May 28, 2015). ¶3 Effective September 1, 2016, the agency again removed the appellant for 48 hours of absence without leave over a 3-month period.2 IAF, Tab 4 at 88-90. The agency stated that the appellant’s misconduct violated the terms of the last chance settlement agreement , and it removed him with out affording him advance notice or notice of his appeal rights. Id. The appellant filed a new Board appeal. ¶4 On appeal, the administrative judge fou nd that the appellant failed to make a nonfrivolous allegation that his conduct did not breach the agreement. IAF, Tab 25, Initial Decision (ID) at 6-11. He determined that the appellant was not entitled to a jurisdiction al hearing , and he dismissed the appeal for lack of jurisdiction. ID at 1, 11 . We have considered the appellant’s arguments on review and agree with the administrative judge that he failed to make a nonfrivolous allegation that the limited medical documentation he submitted was sufficie nt to justify his absence from May 4 -6, 2016. ¶5 Having found that the appellant failed to raise a nonfrivolous factual issue of compliance with a settlement agreement, the Board must now determine the scope and applicability of the agreement’s waiver provisi on. Stewart v. U.S. Postal Service , 926 F.2d 1146 , 1148 (Fed. Cir. 19 91); Hamiter v. U.S. Postal Service , 96 M.S.P.R. 511 , ¶ 13 (2004). The appellant bears the burden of proving that his appeal is within the Board’s jurisdiction. Hamiter , 96 M.S.P.R. 511, ¶ 8. ¶6 Here, the waiver clause is quite broad . If the appellant failed to comply with all of the agreemen t’s provisions, he would be removed with no right to 2 The administrative ju dge exercised his discretion to focus solely on 24 hours of absence without leave on May 4 -6, 2016 , because proof that the appellant breached the agreement on those days would be sufficient to invoke the agreement’s waiver clause. 4 appeal. IAF, Tab 4 at 33, ¶ 1. The appellant was represented by counsel at the time he entered into the agreement, and he is represented by the same counsel during this appeal. Although put on notice by the administrative judge that the scope an d applicability of the waiver clause was at issue in this appeal, IAF, Tab 5, the appellant did not challenge the scope of his waiver of appeal rights. Instead, he argued simply that he did not breach the agree ment. IAF, Tab 11. The Board has found a similarly broad waiver clause to be enforceable. Hernandez v. U.S. Postal Service , 49 M.S.P. R. 245 , 247 -48 (1991) (finding enforceable a settlement provision requiring the appellant to conduct himself in accord with Postal Service rules and regulations or be subject to dismissal with no right to grieve and no right to seek administrative or judic ial relief) , aff’d , 954 F.2d 733 (Fed. Cir. 1992) (Table) . We find, therefore, that the appellant has failed to prove that the agreement’s waiver of appeal rights should not be enforced against him. The administrative judge correctly dismissed this appeal for lack of jurisdiction . NOTICE OF APPEAL RIG HTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 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 eac h of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information . (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your p etition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s we bsite, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono represent ation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discri mination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 7 with the EEOC no later than 30 calendar days after your re presentative 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. 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.4 The court of appeals must receive your petition for 4 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney wil l 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	LATTA_RASHID_PH_0752_17_0007_I_1_FINAL_ORDER_2001653.pdf	2023-02-10	null	PH-0752	NP
3,564	https://www.mspb.gov/decisions/nonprecedential/CHEATHAM_JERMAINE_BERNARD_AT_0752_22_0182_I_1_FINAL_ORDER_2001682.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JERMAINE BERNARD CHE ATHAM, SR, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -22-0182 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jevon Rhodes , Miami, Florida, for the appellant. Dana C. Heck , Esquire, St. Pete rsburg , Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal as untimely filed . On petition for review, the appellant reiterates arguments made to the administrative judge and further 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 alleges that he had difficulties coordinating with and erroneous advice from his union representative and that his appeal should be considered timely because the Board does not conduct business on weekends or holi days. Petition for Review File, Tab 1 at 4. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 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. 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. § 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 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 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.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 o r in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the 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.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	CHEATHAM_JERMAINE_BERNARD_AT_0752_22_0182_I_1_FINAL_ORDER_2001682.pdf	2023-02-10	null	AT-0752	NP
3,565	https://www.mspb.gov/decisions/nonprecedential/PERRAULT_DIONNE_DA_0752_15_0522_I_1_FINAL_ORDER_2001772.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DIONNE PERRAULT, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER DA-0752 -15-0522 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Terrence J. Johns , New Orleans, Louisiana, for the appellant. Sandy S. Francois , New Orleans, Louisiana, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal of an alleged demotion 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 decis ion is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . We AFFIRM the initial decision as MODIFIED by this Final Order to supplement the administrative judge’s jurisdictional analysis . BACKGROUND ¶2 Effective June 29, 2014, the appellant was promoted/ reassigned from a GS-0525 -07 Acco unting Technician position to a GS-2210 -07 Information Technology Specialist po sition with a higher adjusted salary due to a special rate of pay under 5 U.S.C. § 5305 . Initial Appeal File ( IAF), Tab 8 at 11-12, Tab 30 at 4.2 The Standard Form 50 (SF -50) documenting the promotion cited 5 C.F.R. § 335.1023 and the agency’s Career Enhancement Program (CEP) as the legal authority for the agency’s action . IAF, Tab 8 at 12. 2 The record contains documentation describing the June 29, 2014 personnel action as a reassignment , but the parties also have referred to the agency’s ac tion as a promotion. IAF, Tab 2 at 7, Tab 8 at 12, Tab 31 at 4. For purposes of this decision, we subsequently refer to the action as a promotion, but, as we explain infra ¶¶ 11-15, we find that t he appellant has not made a nonfrivolous allegation of a reduction in grade and that it is unnecessary to decide whether she made a nonfrivolous allegation of a reduction in pay . 3 Pursuant to 5 C.F.R. § 335.102 (f), agencies can “[m]ake time -limited promotions to fill temporary positions . . . for a specified period of not more than 5 years, unless [the Office of Personnel Management] authorizes the agency to make and/or extend time -limited promotions for a longer period. ” The regulation als o provides that “the employee may be returned at any time to the position from which temporarily promoted, 3 ¶3 CEP positions are entry -level position s in the Federal Government advertised at the GS -5 and/or GS -7 levels with target s at the GS -11 or GS -12 grade level s. Id. at 10. According to the agency’s CEP P olicy, the 52 -week program gives employees an opportuni ty to develop and grow within the agency, when the y otherwise would not have been eligible for promotion. Id. at 9-10. CEP participants are temporarily assigned to the position with a formalized training plan, and they are expected to satisfactorily complete the requirements of the CEP within the first 52 weeks in the program or they will be returned to their position of record. Id. ¶4 The job announcement for the appellant’s CEP position informed applicants that initial placement is temporary and , if the selected employee does not satisfactorily complete the program req uirements within the first 52 weeks, the employee “will be returned to the position of record if available, or to a position equivalent in grade and salary to the position held before selection to the program.” IAF, Tab 30 at 6 -7. The job announcement fu rther stated that, although employees in a position with further promotion potential may be noncompetitively promoted if they successfully complete the program requirements a nd if recommended by management, “promotion is neither implied nor guaranteed.” Id. at 6. ¶5 In a June 15, 2015 letter , the agency informed the appellant that her temporary placement in the CEP position was being terminated based on management’s determination that she did not successfully complete the program requirements. IAF, Tab 7 at 8. Effective June 28, 2015, the agency returned the appellant to her position of record as a GS-0525 -07 Acco unting Technician . IAF, Tab 8 at 13 (SF-50 citing 5 C.F.R. § 335.102 as th e legal authority for the action) . ¶6 The appellant filed a Board appeal and requested a hearing, alleging that she was illegally demoted when the agency reassigned her to her “previ ously held or to a different position of equivalent grade and pay, and the return is not subject to the procedures in parts 351, 432, 752, or 771 of this chapter.” 5 C.F.R. § 335.102 (f)(1). 4 grade, title and pay ” in the GS -0525 series instead of p romoting her to a GS - 2210 -09 position after she completed the 52-week CEP training program and receiv ed “a fully successful performance rating within the first year .” IAF, Tab 2 at 3, 5, 7, Tab 29 at 3 . The appellant alleged that the agency was required to promot e her to the GS -9 posit ion on June 29, 2015 , following the 1 -year annivers ary of her CEP appointment and, after that date, the agenc y could no t simply retur n her to her previously held position . IAF, Tab 28 at 3-4, Tab 32 at 3-4. The appellant further alleged that, on June 30, 2015, “after the 52 week deadline had passed,” the human resources office received management ’s request to reassign her to her previous position , retroactive to June 28, 2015. IAF, Tab 29 at 3 -4. The appellant, an African -Americ an woman, also raised a claim of discrimination based on her race , color, and sex. IAF, Tab 32 at 3-4. ¶7 The administrative judge informed the appellant that the Board may not have j urisdiction over the action she was appealing , explained what i s required t o establish the Board’s jurisdiction over a reduction in grade or pay , and ordered the appellant to file evidence and argument that her appeal was w ithin the Board’s jurisdiction. IAF, Tab 3 at 2 , Tab 14 at 1-2, Tab 25 at 1 -3. The appellant responded, alleging that the agency was required to promote her to a GS -9 position on June 29 , 2015, after she successfully completed 52 weeks of training in her CEP position and that her reassignm ent effective June 28, 2015, was an illegal demotion . IAF, Tab 15 at 3-4. The agency moved to dismiss the appeal for lack of jurisdiction, asserting , in pertinent part , that neither the termination of her temporary promotion nor her nonselection for a permanent promotion was an adverse action appealable to the Board under 5 U.S.C. chapter 75 . IAF, Tabs 16-18, 24, 26 -27, 31 . Based on the written record, t he administrative judge dismissed the appeal for lack of jurisdiction , finding that the appellant had failed to make a nonfrivolous allegation of jurisdiction over her app eal. IAF, Tab 33, Initial Decision ( ID) at 6-7. 5 ¶8 In reaching her decision, the administrative judge explained that, by regulation, an action that terminat es a temporary promotion and returns the employee to the position from which temporarily promoted is not an appealable adverse action under 5 U.S.C. chapter 75. ID at 6 (citing 5 C.F.R. §§ 335.102 (f), 752.401(b)(12) ). She found that the appellant failed to make a nonfrivolous allegation that the action she was challenging was appealable, notwithstanding these regulations . ID at 6 -7. The administrative judge foun d that the appellant made only pro forma allegations that she successfully completed her 52 -week CEP training period . Id. She further concluded that the appellant failed to make a nonfrivolous allegation that the CEP gave her greater appeal rights than any other temporarily promot ed employee. ID at 7. The administrative judge also found that, absent an otherwis e appealable action, the appellant’s allegations of prohibited discrimination were not an independent source of Board jurisdiction. Id. ¶9 The appellant has filed a petition for review of the initial decision , generally repeating her arguments that the Board can review her demotion appeal because the agency was required to give her a permanent promotion upon her successful completion of the 52-week training in her CEP position . Petition for Review ( PFR ) File, Tab 1 at 3-4. The agency has responded in opposition to her petition for review. PFR File, Tab 2. DISCUSSION OF ARGUME NTS ON REVIEW ¶10 The Board’s jurisdiction is limited to those matters over which it has been given ju risdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). An appellant is entitled to a juris dictional hearing only if s he makes a nonfrivolous a llegation of Board jurisdiction. Francis v. Department of the Air Force , 120 M.S.P.R. 138 , ¶ 14 (2013). A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven, could e stablish that the Board has jurisdiction over the matter at 6 issue. Id.; 5 C.F.R. § 1201.4 (s). In determining whether the appellant has made a nonfrivolous allegatio n of jurisdiction entitling h er to a hearing, the administrative judge may consider the agency’ s documentary submissions; however, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve confl icting assertions of the parties and the agency’s evidence may not be dispositive . Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (199 4). For the following reasons, we find that the appellant has fail ed to nonfrivolously allege any facts that, if proven, could establish that the Board has jurisdiction over her appeal . The appellant ha s not allege d facts that, if proven , could establish that the agency subjected to her to an appealable reduction in grade. ¶11 The Board has jurisdiction over an appeal of a reduction in a F ederal employee’ s grade or pay. See 5 U.S.C. §§ 7512 (3)-(4), 7513(d). In this context, “grade” means a level of classification under a position classification system , and “pay” is defined as the rate of basic pay fixed by law or administrative action for the position held by an employee. 5 U.S.C. § 7511 (a)(3) -(4); 5 C.F.R. § 752.402 . Chapter 75’s implementing regulations further explain that “pay” means the “rate of pay before an y deductions and exclusive of additional pay of any kind. ” Adde v. Department of Health and Human Services , 110 M.S.P.R. 689 , ¶ 10 (2009); 5 C.F.R. § 752.402 . Ordinarily, a reassignment without loss of grade or pay is not appealable to the Board as an adverse action under 5 U.S.C. chapter 75 . E.g., Marcheggi ani v. Department of Defense , 90 M.S.P.R. 212 , ¶ 7 (2001) . Thus, in a case like this, there is ordinarily a threshold jurisdicti onal issue of whether the appellant has suffered a reduction in grade or pay as those terms are defined for purposes of chapter 75. ¶12 The undisputed documentary evidence shows that the appellant’s CEP position and the Accounting Technician position shared the same grade but the 7 pay was greater in the CEP position due to a special rate of pay under 5 U.S.C. § 5305 . IAF, Tab 8 at 1 1-13. On review, t he appellant appears to argue that the CEP position held greater promotion potential than the Accounting Technician position , which could be con strued as an argument that she was reduced in grade . PFR File, Tab 1 at 3-4. We find this argument unavailing because promotion potential is not a basis for disti nguishing between positions of equal grade for purposes of determining whether an appealable reduction in grade has occurred . Burrell v. Environmental Protection Agency , 81 M.S.P.R. 427, ¶ 12 (1999); Lange v. Department of Transportation , 1 M.S.P.R. 700, 701 -03 (1980). ¶13 To the extent that the appellant claims that she suffered a reduction in grade because the agency should have promoted her to a GS -9 position after 1 year of successful performance in the CEP position , we find that she has failed to make a nonfrivolous allegation of an action within the Board’ s jurisdiction. The denial of a promotion is not an adverse action that is generally appealable to the Board. See, e.g. , Walters v. U.S. Postal Service , 65 M.S.P.R. 115 , 118 (1994). The appellant did not make any allegations that could implicate any of the exceptions to the general rule. See genera lly 5 C.F.R. parts 1208, 1209 (concerning claims pursuant to t he Veterans Emplo yment Opportunities Act of 1998, the Uniformed Services Employment and Ree mployment Rights Act of 1994, and the Whistleblower Protection Act, as amended). Further, absent an allegation that a relevant position was reclassified, she has no t alleged facts that, if proven, could establish jurisdiction on a “constructive demotion ” theory. See, e.g. , Marcheggianni , 90 M.S.P.R. 212 , ¶¶ 7-10. ¶14 Accordingly, we find that the appellant has not made a nonfrivolous allegation that she was subjected to an appealable reduction in grade. 8 A reduction in grade or pay associated with the termination of an employee’s temporary promotion and return to her former position is not an appealable adverse action under 5 U.S.C. chapter 75. ¶15 The appellant may have experienced a reduction in “pay” as that term is defined in 5 U.S.C. § 7511 (a)(4) and 5 C.F.R. § 752.402 . However, we find that there is an issue as to whether the special rate of pay under 5 U.S.C. § 5305 associated with the CEP position should be considered in determining whether the appellant has experienced a reduction in “pay” under applicable definitions. IAF, Tab 8 at 12, Tab 14 at 1-2; see Adde , 110 M.S.P.R. 689, ¶¶ 10-14. We do not reach this issue because, even assuming the appellant experienced a reduction in grade and/or pay , we agree with the administrative judge that the Board lacks jurisdiction to review the type of action challenged here for the following other reasons. ID at 6-7. ¶16 Under regulation s implementing chapter 75 , the adverse action appeal process before the Board does not apply when an agency “terminates a temporary or term promotion and returns the employe e to the position from which temporarily promoted, or to a different position of equivalent grade and pay, if the agency informed the employee that it was to be of limited durati on.” 5 C.F.R. § 752.401 (b)(12). Further, 5 C.F.R. § 335.102 (f)(1) similarly provides that an employee serving a time -limited promotion “may be returned at any time to the position from which temporarily promoted, or to a different position of equivalent grade and pay, and the return is not subject to [certain procedures ],” including, as particularl y relevant here, the p rocedures governing adverse actions set forth in 5 C.F.R., part 752, subpart D. T he Board and the U.S. Court of Appeals for the Federal Circuit have long followed the implementing regulations excluding such actions from the adverse action appeal proce ss. See, e.g. , Mosley v. Department of the Navy , 31 M.S.P.R. 689 , 690 -91 (1986); Phipps v. Department of Health and 9 Human Services , 767 F.2d 895 , 897 (Fed. Cir. 1985) .4 For the foll owing reasons, we agree with the administrative judge’s conclusion that the exclusion in 5 C.F.R. § 752.40 1(b)(12) applies here . ¶17 We find that the appellant has failed to make a nonfrivolous allegation that her promotion through the CEP was anything other than temporary . We find nothing in the terms of the agency’s CEP, vacancy announcement, or appointing documentation that suggests that her temporary promotion might become permanent absent further explicit agency action. This is consistent with the general rule that the promotion of a Federal employee cannot occur unless an official with the appropriate authority took, authorized, or ratified an action that could reasonably be said to have resulted in a n appointment or promotion . See Hoever v. Department of Navy , 115 M.S.P.R. 487, ¶ 8 (2011). The appellant has not made a nonfrivolous allegation that any such act occurred here. ¶18 We have considered the appellant’s the ory that she should be deemed to have been promoted because she successful ly complet ed 52 weeks in the CEP position ; however , we find that she has not id entified any legal authority or alleged any facts that , if proven , could establish that she was entitle d a promotion under these circumstances absent further express action from the agency . The appellant relies in particular on the following excerpt from the agency’s CEP Policy: Positions are initially filled as temporary, with the option to make the selec tion permanent within the first 12 months (52 weeks ) of program participation . The selection is made permanent and the employee non -competit ively promote d to the next grade in the caree r ladder when: 1. Time in grade and specialized experience requirement s have been met; 4 Although the implementing regulations have undergone revision since these cases were decided, we find that the fundamental principle has remained constant and any differences in the regulations are immat erial to the outcome of this appeal. 10 2. Training requirements for the current grade level have been successfully completed; and 3. Performance is at a fully successful level or higher at the current grade level as documented by quar terly performance between the employee and supervisor. IAF, Tab 30 at 9 -10. In the appellant’s view, she satisfied all of these criteria, and the agency could no longer deny her a promotion after she occupied th e CEP position for more than 52 weeks . E.g., IAF, Tab 15 at 3, Tab 29 at 3 ; PFR File, Tab 1 at 3 -4. We find that the appellant has failed to make a nonfrivolous allegation that the agency was obligated to promote her after she occupied the CEP position for 52 weeks. On its face, the agency’s CEP Policy does not support the appellant’s the ory; instead, it reinforces the normal rule that the decision to promote requires action by agency management. See Hoever , 115 M.S.P.R. 487 , ¶ 8. For instance , the CEP P olicy refers to management’s “option” to make the selection permanent during the first 52 weeks of participation. IAF, Tab 30 at 9. It further provides for permanent noncompetitive promotion only after the emplo yee “successfully” completes training requirements and her supervisor documents her performance at a “f ully successful level or higher ,” thus anticipating assessment by management. Id. at 9-10. Accordingly, we find that the appellant has not alleged any facts that, if proven, could establish that her promotion through the CEP was anything other than temporary . ID at 6 -7; see Phipps , 767 F.2d at 896 -97 (rejecting an employee’s argum ent, concerning a prior version of 5 C.F.R. § 335.102 (f), that “the mere lapse of time” created new rights to a position to which an employee had been temporarily promoted) . ¶19 We further f ind that t he undisputed record shows that the agency informed the appellant that her promotion to the CEP position was to be of limited duration. The vacancy announcement created no express or implied right to continued employment in her te mporary position. IAF, Tab 30 at 6. The job announcement specified that CEP participants receive temporary position 11 assignments and that “promotion is ne ither implied nor guaranteed.” Id. We find that the appellant has failed to make a nonfrivolous al legation that 5 C.F.R. § 752.401 (b)(12) does not apply because of a lack of notice that the promotion to the C EP position was to be of limited duration. ¶20 It is also undisputed that the agency returned the appellant to a GS -7 Accounting Technician position, which was the p osition and grade she occupied prior to her temporary promotion through the CEP . IAF, Tab 2 at 7, Tab 29 at 3. The appellant does not claim that she has been returned to a position with a reduction in grade or pay as compared to what she held prior to taking th e tempo rary promotion through the CEP. ¶21 Thus, we find the facts alleged clearly implicate the regulations rendering the adverse action appeal process inapplicable to an agency’s action terminating an employee’s temporary promotion and returning her to the p osition from which she w as temporarily promoted. See 5 C.F.R. § 752.401 (b)(12). We find that the appel lant has failed to make a nonfrivolous allegation that this regulatory limitation d oes not apply to her claims. Accordingly, we affirm , as modified, the initial decision dismissing this appeal for lack of jurisdiction.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 5 The administrative judge found that, absent an otherwise appealable action, the Board does not have jurisdiction over her allegations of prohibited discrimination. ID at 7. The appellant does not specifically disput e this finding on review, and we find no reason to disturb it. See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), (finding 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) . 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 a ny matter. 12 your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filin g time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 13 relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to t he Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision 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 . 14 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 with the EEOC no later than 30 calendar days after your representative 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 whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 15 competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the 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 Contact information for the courts of appeals can be 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	PERRAULT_DIONNE_DA_0752_15_0522_I_1_FINAL_ORDER_2001772.pdf	2023-02-10	null	DA-0752	NP
3,566	https://www.mspb.gov/decisions/nonprecedential/SMITH_VALINDA_L_DA_3443_16_0139_I_1_FINAL_ORDER_2001778.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD VALINDA L. SMITH, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER DA-3443 -16-0139 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Terrence J. Johns , New Orleans, Louisiana, for the appellant. Sandy S. Francois , New Orleans, Louisiana, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findin gs of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requ ired to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of 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 in itial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligen ce, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The facts material to the dispositive jurisdictional issue are undisputed. The appellant received a time -limited promotion, effectiv e June 29, 2014, from her GS -6 Procurement Technician position to a GS -7 Acquisitions Specialist position pursuant to an employment training opportunity under the agency’s Career Enhancement Program (CEP). Initial Appeal File ( IAF), Tab 34, Initial Decision (ID) at 2; IAF, Tab 20 at 15, 20 . The Standard Form 50 ( SF-50) documenting the personnel action reflected that the promotion was made pursuant to 5 C.F.R. § 335.102 and not to exceed (NTE) June 28, 2015.2 IAF, Tab 20 at 20. Although the time -limited promotion originally was scheduled to expire by June 28, 2015, the agency extended it to July 26, 2015. IAF, Tab 21 at 7. On or about August 29, 2015, two months after the expiration date of the appellant’s temporary promotion , the agency retroactively returned her to her GS-6 2 Under 5 C.F.R. § 335.102 (f), a gencies have the authority to “[m] ake time -limited promotions to fill temporary positions . . . for a specified period .” The regulation further states that “t he employee may be returned at any time to the position from which temporarily promoted, or to a different position of equivalent grade and pay, and the return is not subject to the procedures in parts 351, 432, 752, or 771 of this chapter.” 5 C.F.R. § 335.102(f)(1). 3 Procurement Technician position effective June 28, 2015 . IAF, Tab 30 at 5; ID at 2 & n.2 . ¶3 The appellant filed a Board appeal alleging that she was constructively demoted b ecause she completed the agency’s CEP training , and, therefore, the agency was requi red to retain her at the higher -grade level . IAF, Tab 1 at 4, 6 , Tab 22 at 1, Tab 28 at 1; ID at 2 -3. The appellant also alleged that the job announcement for the promotion did not indicate that it was for an NTE position , that the agency paid her as if the position was permanent, and that the agency improperly reclassified the promotion as temporary . IAF, Tab 25 at 4 -5; ID at 3 . The appellant further alleged that the agency improperly retu rned her to her former position without informing her t hat it was ending her promotion and that the agency did not inform her that she could appeal her reduction in grade. IAF, Tab 9 at 3; ID at 3. The appellant also raised claim s of discrimination based on her race, color , disability , and age. IAF, Tab 1 at 6. ¶4 The administrative judge explained the Board’s criteria for establishing jurisdiction over her appeal and directed the appellant to meet her jurisdictional burden of proof. IAF, Tab 18 at 1 -2. T he agency responded by filing a motion to dismiss the appeal for lack of jurisdiction, arguing that the termination of a temporary promotion is excluded from the types of adverse actions that are appealable to the Board. IAF, Tab 21 at 4 -5; ID at 5, 12. The administrative judge found that the appellant had raised a sufficient question of fact as to whether the terms of the agency’s training prog ram required her to be promoted and, therefore, that she wa s entitled to a jurisdictional hearing. IAF, Tab 22 at 1. ¶5 After holding a hearing on the jurisdictional issue, the administrative judge granted the agency’s motion and dismissed the appeal for lack of jurisdiction. ID at 1; IAF, Tab 33, Hearing Compact Disc. In the initial decision, the administrative judge found that CEP positions are temporary 52 -week training programs and that the failure of the appellant’s supervisor to take action following the expiration of her CEP training pe riod did not render her 4 time -limited CEP promotion permanent. ID at 6, 8. The administrative judge also found that the appellant knew her CEP promotion was limited in duration and that she failed to complete the required CEP training. ID at 9 -10. ¶6 The administrative judge further found that the vacancy announcement specified that the appellant’s CEP position was temporary, with an option to become permanent only upon satisfactory completion of training and performance requirements , and that “promotion i s neither implied nor guaranteed .” ID at 9. In addition, t he vacancy announcement specified that the employee would be returned to her position of record if the training and performance requirements were not met. Id. Based on these findings, the admini strative ju dge conclude d that the appellant failed to esta blish by preponderant evidence that the CEP position gave her greater rights than those granted to a temporarily promoted employee under 5 C.F.R. § 335.102 (f) and that she had no appeal rights because the termination of her temporary promotion clearly me t the definition of an excluded action described in 5 C.F.R. § 752.401 (b)(12). ID at 10-11. Accordingly, the administrativ e judge found that the appellant failed to fulfill her burden of showing that the Board has jurisdiction over her appeal . ID at 11 -12. The administrative judge also found that, absent an other wise appealable issue, the Board has no jurisdiction over the appellant’s allegations of prohibited discrimination based on race, color, disability , and age. ID at 12. ¶7 The appellant has filed a petition for review of the initial decision , generally repeating the arguments she made on appeal alleging, among other things, that she successfully completed the required CEP training and the agency’s action was actually an improper demotion. Petition for Review ( PFR ) File, Tab 1 at 3 -4. The appellant also alleges that her supervisor committed perjury at the hearing . Id. at 3. The agency has responded in opposition to her petition for review. PFR File, Tab 3. 5 DISCUSSION OF ARGUME NTS ON REVIEW ¶8 The Board’s jurisdiction is limited to those matters over w hich 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 a ppellant bears the burden of proving Board jurisdiction by pr eponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). Preponderant evidence is defined as “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4 (q). For the following reasons, we find that the appellant has failed to prove that the Board has jurisdiction over her appeal. ¶9 The U.S. Court of Appeals for the F ederal Circuit has held the regulatory provisions of 5 C.F.R. § 335.102 (f)(1) do not require adverse action procedures when a temporarily promoted employee is returned to her previous position even after having served in the temporary position for more tha n a 2 -year period . See Phipps v. Department of Health and Human Services , 767 F.2d 895 , 897 (Fed. Cir. 1985) ; see also Mosley v. Department of t he Navy , 31 M.S.P.R. 689 , 690 -91 (1986) . We agree with the administrative judge’s finding that the appellant’s time -limited CEP promotion did not automatically become permanent on June 28, 2015, merely because of her supervisor’s inaction when her CEP training period ended.3 ID at 8 -9. Contrary to the appellant’s arguments on review, the promotion of a Federal employee cannot occ ur unless an official with the appropriate authority took, authorized, or ratified an action that could reasonably be said to have resulted in a promotion to a permanent position . See Hoever v. 3 The administrative judge also found that the agency’s h uman resources department erred in retroactively returning the appe llant to her position of record but that the Board has no jurisdiction to consider the appellant’s arguments that she was entitled to a GS -7 salary from June 28 to August 8, 2015, when her time -limited promotion was terminated retroactively, or that the agency’s debt collection action was improper. ID at 8, 11 n.5. We agree with the administrative judge’s finding that the Board has no jurisdiction to consider these issues, and the appellant does not appear to challenge this finding on review. ID at 11 n.5. 6 Department of Navy , 115 M.S.P.R. 487 , ¶ 8 (2011). Here, t he appellant has failed to establish that the agency’s CEP program created an exception to this general rule or that her promotion becam e permanent through the passage of time or because of an action taken by agency official s. Accordingly, we agree with the administrative judge’s finding that the Board does not have jurisdiction over an agency’s terminatio n of a temporary promotion when , as here, the appellant was returned to her original position without a reduction in grade or pay. ID at 10. ¶10 In reaching her decision, the administrative judge considered the record evidence , summarized the hearing testimony of the appellant and the a gency officials , and made demeanor -based credibility determinations to resolve disputed facts, applying the Board’s criteria in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). ID at 6 -10. The administrative judge found, in pertinent part, that the agency’s human resources (HR) prof essionals credibly testified that a supervisor is required to submit a Standard Form 52 (SF -52) to HR upon the conclusion of a CEP employee’s 52 -week training period to permanently promote the employee or to return the employee to her position of record. ID at 8. The administrative judge considered the testimony of the appellant’s supervisor that she submitted an SF -52 to HR on or about August 7, 2015, requesting that the appellant be returned to her position of record because she failed to fulfill the re quirements of the CEP training program. ID at 8 -10. The administrative judge also found that the appellant’s testimony was inconsistent and not credible. ID at 10. We find that the administra tive judge’s demeanor -based credibility determinations deserve deference from the Board. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372-73 (Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’ s demeanor -based credibility determinations, “[e]ven if demeano r is not explicitly discussed”); Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). 7 ¶11 On review, the appellant also argues that her manager committed perjury by testifying that the NTE date of her temporary promotion was extended to give her additional time to improve her job perfo rmance. PFR File, Tab 1 at 3. To the extent that the appellant is disputing the reason that the agency extended her temporary promotion or challenging the merits of the agency’s action returning her to her position of record rather than perm anently effec ting her promotion, her argument is not relevant to the dispositive jurisdictional issue before the Board on review. Accordingly , we affirm the initial decision dismissing this appeal for lack of jurisdiction . NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 9 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for rev iew to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection 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.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 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 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. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_VALINDA_L_DA_3443_16_0139_I_1_FINAL_ORDER_2001778.pdf	2023-02-10	null	DA-3443	NP
3,567	https://www.mspb.gov/decisions/nonprecedential/WINE_MITCH_DA_0752_18_0116_I_1_FINAL_ORDER_2001829.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MITCH WINE, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DA-0752 -18-0116 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mitch Wine , Mountain View, Arkansas, pro se. Annette Tarnawsky , Esquire, and John Austin , Esquire, Knoxville, Tennessee, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Li mon recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed as settled his appeal challenging his removal from the agenc y. For the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 On December 18, 2017, the appellant filed an appeal challenging the agency’s decision to remove him from his Fish and Wildlife Biologist position, effective December 10, 2017. Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116 -I-1, Initial Appeal File (IAF), Tab 1 at 1-2, 33 -45. The administrative judge found that the Board has jurisdiction over the appeal under 5 U.S.C. §§ 7511 -7513. IAF, Tab 27 at 6 . The parties subseque ntly entered into a settlement agreement effective April 27, 2018 , and submitted it to the Board for enforcement purposes .2 IAF, Tab 54. On April 30, 2018, the administrative judge issued an initial decision finding that the agreement appeared lawful on its face, the parties had freely entered into it, they understood its terms , and they wanted the terms of the agreement to be enforceable by the Board. IAF, Tab 56, Initial Decision (ID) at 1-2. Thus, the administrative judge dismissed the appeal as sett led. Id.; see 5 C.F.R. § 1201.41 (c)(2) (i). ¶3 As relevant here, o n September 19, 2018, the appellant f iled a petition for enforcement alleging that the agency breached the settlement agreement. Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116 -C-1, Compliance File (CF -1), Tab 1 . In an initial decision dated February 20, 2019, the administrative judge granted the petition for enforcement, finding that the agency failed to fully comply with the agreement, and ordered it to take certain actions to be in compliance with the settlement agreement. CF-1, Tab 1 9, Compliance Initial Decision at 2, 18 -19. On March 15, 2019, the agency filed a statement of complian ce, and the issue of complian ce is still pending before the 2 According to the terms of the settlement agreement, the appellant had the right to revoke the agreement on or before the April 27, 2018 effective date. IAF, Ta b 54 at 4, 8, 10. 3 Board .3 Wine v. Department of the Interior , MSPB Docket No. DA-0752 -18- 0116 -X-1. ¶4 On November 26, 2021, the appellant filed the herein petition for review. Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board issued an acknowledgment letter, advising the appellant that h is petition for review was untimely filed because it was not postmarked or received on or before June 4, 2018, and informing h im that he must establish good cause for the untimely filing. PFR File, Tab 2 at 1-3. To assist the appellant, the Acting Clerk of the Board attached a form “Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit. ” Id. at 2, 7 -8. The appellant file d the required motion. PFR File, Tab 3. The agency has not responded to the petition for review. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board’s regulations provide that a petition for review must be filed within 35 days after the date of the issuance of t he 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 petitioner received the initial decision. See 5 C.F.R. § 1201.114 (e); see also Palermo v. Department of the Navy , 120 M.S.P.R. 694 , ¶ 3 (2014). Here, the administrative judge issued the initial decision on April 30, 2018 , and the appellant , a registered e -filer, 3 Following the compliance initial decision, the appellant filed two additional petitions for enforcement. Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18- 0116 -C-2, Compliance File (CF -2), Tab 1; Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116 -C-3, Compliance File (CF -3), Tab 1 . Both were dismissed for adjudicatory efficiency because they have raised claims that are still pending before the Board. CF -2, Tab 28 , Compliance Initial Decision at 7; CF -3, Tab 13, Compliance Initial Decision at 1, 4. Because neither party petitioned for review of the decision s dismissing the petitions for enforcement , they are now the final decision s of the Board. See 5 C.F.R. § 1201.113 (reflecting that an initial decision generally becomes the Board’s final decision 35 days after it is issued absent a petition for review). 4 acknowledges that he received it on the same day. PFR File, Tab 1 at 3; ID at 1. The initial decision also correctly informed the appel lant that he was required to file any petition for review no later than June 24, 2018 . ID at 2. The appellant filed h is petition for review on November 26 , 2021. PFR File, Tab 1, Tab 2 at 1 . As such, we find that the petition for review is untimely fil ed by over 3 years and 5 months. ¶6 The Board may waive its timeliness regulations only upon a showing of good cause for the untimely filing. Palermo , 120 M.S.P.R. 694 , ¶ 4; 5 C.F.R. §§ 1201.12 , 1201.114(g). The party who submits an untimely petition for review has the burden of establishing good cause by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo , 120 M.S.P.R. 594 , ¶ 4; Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of h is excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond h is control that affected h is ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to h is inability to timely file his petition. Palermo , 120 M.S.P.R. 694 , ¶ 4; Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶7 Although the appellant is pro se, the remaining factors disfavor finding that good cause exists for h is delay in filing. H is filing delay of over 3 years is significant. Youngblood v. U.S. Postal Service , 112 M.S.P.R. 136 , ¶¶ 7 -8 (2009) (finding a delay of over 2 years in filing a petition for review was “significant” and declining to excuse the unt imeliness of the petition, even considering the appellant’s pro se status). We have considered the appellant’s assertion that the filing deadline should be waived because he “continue [s] to suffer from severe 5 depression and anxiety related to [a]gency mis conduct .” PFR File, Tab 1 at 4. The Board will find good cause for an untimely filing when a party demonstrates that he suffered from an illness or medical condition that affected h is ability to file on time. See Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 19 (2016). ¶8 To establish that an untimely filing was the result of an illness, the party must (1) identify the time period during which he suffered from the illness, (2) submit medical evidence showing that he suffered from the alleged illness during that time period, and (3) explain how the illness prevented h im from timely filing h is petition or a request for an extension of time. Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). The party need not prove incapacitation, only that his ability to file was affected or impaired by the medical condition. Id. In h is motion to waive the time limit for filing a petition for review , the appellant did not specifically explain how h is “severe depression and anxiety” prevented h im from time ly filing a petit ion for review or motion for an extension of time. PFR File, Tab 3 at 4 -5. Thus, he failed to establish that his untimely filing was the result of his health conditions. See Pirkkala , 123 M.S.P.R. 288 , ¶ 20 (finding that the appellant failed to explain how her shoulder problems affected her ability to file a time ly removal appeal); Stribling v. Department of Education , 107 M.S.P.R. 166 , ¶¶ 10 -11 (2007) (finding that an appellant failed to establish good cause for an untimely filing despite her assertion that she suffered from anxiety and depression because she did not present any evidence that specifically addressed her condition during the relevant time period, and because she failed to e xplain how her medical conditions prevented her from submitting a timely filing or requesting an extension). ¶9 We have also considered the appellant’s argument that the Board should find good cause for his untimely filing because “the administrative judge wa s not properly appointed to her position under the Appointments Clause ” based on the 6 decision of the U.S. Supreme Cour t in Lucia v. Securities and Exchange Commission , 138 S. Ct. 2044 (2018) . Tab 1 at 4, 6. Specifically , he appears to allege that this is new and material evidence because he was unaware of Lucia and its impact on his case. PFR File, Tab 1 at 4. We are not persuaded. The discovery of new and material evidence after the initial decision becomes final may constitute good cause for an untimely filed petition for review in certain circumstances. Copley v. Department of Energy , 58 M.S.P.R. 437 , 439 (1993). As relevant here, t he Court issued Lucia on June 21, 2018, fifty -two days after the initial decision in this case. ID at 1. However, the appellant has failed to provide any explanation —besides his ignorance of the Lucia decision —for the more than 3-year delay between its issuance and his November 2021 petition for review . See Copley , 58 M.S.P.R. at 439-40 (dismissing a petition for review as untimely without good cause when, among other things, the appellant failed to explain the months -long delay between his purported discovery of new evidence and the filing of his petition) ; see also Bonk v. Department of Homeland Security , 109 M.S.P.R. 210 , ¶ 7 (2008) (recognizing that any ignorance of the law does not warrant waiving the deadline ), aff’d , 301 F. App’x 965 (Fed. Cir. 2008) . Thus, even if Lucia was deemed material, he failed to show that he exercised due diligence and ordinary prudence in pursuing his appeal or that his significant delay was caused by circumstances beyond his control. ¶10 We similarly find unav ailing the appellant’s argument that good cause exists for h is delay in filing because “[he] was coerced into a settlement agreement as a result and that settlement agr eement has been breached.” PFR File, Tab 1 at 4, 6. As set forth above, the effective date of the parties’ settlement agreement was April 27, 2018. IAF, Tab 54 at 4, 7 -15. The appellant had an opportunity to revoke the settlement prior to the effective date. Id. at 8. He also could have challenged t his alleged coercion on or before the initial decision’s finality date o f June 4, 2018. ID at 2. To the extent that he argues that 7 the agreement has been breached, as discussed above, the appellant ’s September 19, 20 18 petition for enforcement was granted , and the issue of compliance is currently pending before the Board . Wine , MSPB Docket No. DA-0752 -18-0116 -X-1. Consequently , this claim does not establish good cause for the delay in filing his petition for review. ¶11 Accordingly, we dismiss the petition for review as untimely filed. Thi s is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the dismissal of the removal appeal as settled . 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 whi ch to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must fil e a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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 9 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 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: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial rev iew either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of App eals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 5 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the 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. Contact information for the courts of appeals can be 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	WINE_MITCH_DA_0752_18_0116_I_1_FINAL_ORDER_2001829.pdf	2023-02-10	null	DA-0752	NP
3,568	https://www.mspb.gov/decisions/nonprecedential/WINE_MITCH_DA_0752_18_0116_X_1_FINAL_ORDER_2001830.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MITCH WINE, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DA-0752 -18-0116 -X-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mitch Wine , Mountain View, Arkansas, pro se. Lindsey Gotkin , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did n ot participate in the adjudication of this appeal. FINAL ORDER ¶1 In a February 20, 2019 compliance initial decision, the administrative judge found the agency in noncompliance with the April 30, 2018 initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are no t 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 dismissing the appellant’s removal appeal as settled.2 Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116 -C-1, Compliance File (CF), Tab 19, Compliance Initial Decision (CID); Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116 -I-1, Tab 56, Initial Decision (ID). For the reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. BACKGROUND ¶2 On April 30, 2018 , the administrative judge issued an initial decision dismissing the appellant’s removal appeal on the basis of a settlement agreement submitted by the parties . ID at 1 -2. As explained below , neither party filed a timely petition for review, and thus the initial decision became the final decision of the Board with respect to the appellant’s removal and the entr y of the settlement agreement into the record for future enforcement . ¶3 The settlement agreement provided, in relevant part, that the agency would withdraw its original termination memorandum (which removed the appellant for misconduct) and replace it with a memorandum terminating the appellant for inability to perform the essential functions of his position . The agency was further required to restore the appellant’s pay and leave balances from the date of his original termination until the date his terminat ion for medical reasons became effective . See CID at 4 -6. The appellant was required to “unequivocally accept his termination for medical reasons” and waive any appeal, grievance, or other right he might have to contest the termination for medical reason s. See CID 2 On November 26, 2021 —more than 3 years after issuance of the initial decision, and more than 2 years after issuance of the compliance initial decision underlying the instant compliance ref erral matter —the appellant petitioned for review of the initial decision. On February 10, 2023 , the Board dismissed h is petition for review as untimely filed without good cause for the delay. Wine v. Department of the Interior , MSPB Docket No. DA-0752 -18-0116 -I-1, Final Order (Feb. 10, 2023) . Thus, the operative decision regarding the parties’ settlement obligations remains the April 30, 2018 initial decision dismissing the removal appeal as settled . 3 at 4-5. Finally, the settlement agreement contained the following language relevant to this petition for enforcement : The Agency and the Appellant agree to cooperate with each other when/if the Appellant applies for disability retirement. The Agency specifically agrees to supply a Form 3112B (Supervisor’s Statement) that will express the Agency’s belief that the Appellant is not able to perform the essential functions of his position due to his medical condition, that it has attempted to accom modate him but cannot do more than it has already done due to his medical condition, and that it has no ability to transfer him to another suitable position due to his medical condition. The Appellant acknowledges that the Agency is not guaranteeing he wi ll be deemed eligible for disability retirement, as that decision is not the Agency’s decision to make. See CID at 6. ¶4 On September 19, 2018, the appellant filed this petition for enforcement,3 primarily alleging that the agency had failed to pay him severance pay and that the revised termination memorandum improperly stated that his removal for medical inability to perform was taken for the efficiency of the service. See CID at 7-10. ¶5 On Feb ruary 20, 2019, the administrative judge issued a compliance initial decision finding the agency partially noncompliant with the settlement agreement . The administrative judge rejected the appellant’s claim to severance pay, finding that the settlement ag reement did not require such payment. CID at 10. The administrative judge further rejected the appellant’s claim that the agency 3 On March 26, 2019, the appellant filed a s econd petition for enforcement, which the administrative judge dismissed in part and denied in part. Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116-C-2, Compliance File , Tab 1 , Tab 28 , Compliance Initial Decision . On July 1, 2019, th e appellant filed a third petition for enforcement, which the administrative judge d ismissed . Wine v. Department of the Interior , MSPB Docket No. DA -0752 -18-0116 -C-3, Compliance File, Tab 1 , Tab 13 , Compliance Initial Decision . Neither party petitioned f or review in either case, and neither is before us in the present matter. The appellant has three other cases pending on petition for review that likewise are not before us in the present matter. See Wine v. Department of the Interior , MSPB Docket No. DA -1221 -16-0513 -W-2; Wine v. Department of Veterans Affairs , MSPB Docket No. DA -1221 -21-0342 -W-1; Wine v. Department of the Interior , MSPB Docket No. DA -4324 -21-0377 -I-1. 4 violated the settlement agreement through its language in the revised termination memorandum, noting that the Board has held that removal for medical inability to perform the essential functions of one’s position promotes the efficiency of the service. CID at 10 -11. ¶6 However, the administrative judge found that the agency failed to establish that it fully complied with the coo peration provision set forth above. The administrative judge faulted the agency’s cooperation with the appellant’s disability retirement application in two respects. First, although the appellant had submitted a disability retirement application to the a gency for transmission to the Office of Personnel Management (OPM) on his behalf, the agency had lost the documentation and was unable to confirm that it had transmitted the entire application to OPM. CID at 11 -12. The administrative judge found that the agency’s handling of the application was “careless and negligent” but not bad-faith noncompliance. CID at 16 -17. Second, the administrative judge found that the copy of the Standard Form 3112B ( SF-3112B ), Supervisor’s Statement, that the agency located (apparently as part of the materials the agency had prepared to submit to OPM with the appellant’s lost disability retirement application) used language incompatible with the cooperation provision of the settlement agreement. The administrative judge expl ained that the SF -3112B contained references to the appellant’s “unsatisfactory conduct ” and that this was at odds with the agreement that the agency provide an SF -3112B that would “express the Agency’s belief that the Appellant is not able to perform the essential functions of his position due to his medical condition, that it has attempted to accommodate him but cannot do more than it has already done due to his medical condition, and that it has no ability to transfer him to another suitable position due to his medical condition.” CID at 15. The administrative judge found that th e language used by the agency breached the settlement agreement , but she did not address whether the breach was material . CID at 16. 5 ¶7 The administrative judge ordered the agency to provide the appellant the following: a revised SF -3112B eliminating the information that contravened the cooperation provision; a SF -3112D (Agency Certification of Reassignment and Accommodation Efforts) “completed in accordance with the information s et out in the parties ’ settlement agreement”; and a completed copy of SF -3112E (agency -completed Disability Retirement Application Checklist). CID at 18 -19. The administrative judge further instructed the appellant to inform the agency whether he wished to submit his disability retirement application directly, or resubmit it to the agency for transmittal to OPM on his behalf. CID at 17 -18. Finally, the administrative judge directed the parties to work to complete the application and send it to OPM “with out further delay ,” and advised the appellant of the relevant deadline and how to meet it, regardless of whether he submitted his application directly or through the agency and regardless of whether he received completed copies of the forms from the agency . CID at 18 & n.13. ¶8 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 Office of 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 de cision, along with evidence establishing that it ha d taken those actions. CID at 19-20; 5 C.F.R. § 1201.183 (a)(6)(i). She also informed the parties of their option to request Board revi ew of the compliance initial decision by filing a petition for review by March 27, 2019, the date on which the findings of noncompliance would become final unless a petition for review was filed . CID at 20 ; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii) , 1201.183(b) . Neither party filed a petition for review of the compliance initial decision with the Board . ¶9 The agency timely filed a statement that it had taken the actions identified in the compliance initial decision, and the appellant’s petition for enforcement accordingly was referred to the Board for a final decision on issues of 6 compliance. Wine v. Department of Interior , MSPB Docket No. DA-0752 -18- 0116 -X-1, Compliance Referral File (CRF), Tab 2. The parties subsequently filed multiple pleadings contesting, among other things, the agency’s obligations, the scope of the compliance initial decision and its relation to the appellant’s other MSPB and non -MSPB litigation, and the out come of the appellant’s disability retirement application . As explained below, we find that the agency cured any material breach of the settlement agreement and that, under the circumstances, the appellant is not entitled to rescission of the settlement a greement . ANALYSIS ¶10 A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a set tlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderanc e of the evidence. Id. ¶11 Over the course of the compliance referral litigation, the agency submitted an evolving series of pleadings, supported by documentation, noting that it had completed the three forms as ordered by the compliance initial decision; tha t it had submitted the appellant’s completed disability retirement application to OPM on April 26 and 29 , 2019, before his 1-year filing deadline expired; that it had attempted to further the success of the appellant’s disability retirement application by informing him that OPM wanted him to submit a SF -3107, but the appellant refused to cooperate; and that OPM had approved the appellant’s disability retirement application and the appellant was receiving interim benefits 7 until OPM could finalize his benefits determination . CRF, Tab 1 at 5, Tab 8 at 4,6,10, Tab 13 at 8-14, Tab 19 at 9-13, 16, 21. ¶12 The appellant countered these submissions with claims that the settlement agreement was invalid or unlawful; that the agency unlawfully accessed his medical records to remove him from his job; that the administrative judge should have awarded him interim relief to remedy delays in processing his disability retirement application caused by the agency’s actions; that the agency did not cooperate in submitting hi s disability retirement application, as ordered by the administrative judge ; that the agency lied about its communications with OPM and transmitted information to OPM that would doom his disability retirement application; and that OPM’s eventual grant of b enefits was for a shorter time frame than expected “as a result of the Agency’s ‘careless’ and ‘negligent’ breach of the settlement agreement .” CRF, Tab 6 at 5 -6, Tab 7 at 4-5, Tab 9 at 5 -6, Tab 16 at 4 , Tab 24 at 5. The appellant also made various claim s related to his 2016 workers compensation litigation , argued that he was entitled to consequential or compensatory damages , and moved for sanctions against the agency . CRF, Tab 7 at 4-5, 7, Tab 18 at 4 -5. Finally, i n response to the Board’s request that he clarify the relief he sought if he prevailed , he stated that he wished to rescind the settlement agreement and reinstate his removal appeal because the agency did not timely submit his disability retirement application to OPM . CRF, Tab 11 , Tab 12 at 4-5. ¶13 Having carefully considered both parties’ submissions, we find that the agency has fully complied with its obligations under the settlement agreement and with the instructions in the compliance initial decision. The appellant has not submitted evidenc e supporting his arguments that the agency failed to cooperate with him, lied to OPM, or otherwise impeded the timely submission and processing of his disability retirement application. By contrast, the agency submitted evidence that it revised the docume nts in accordance with the administrative judge ’s instructions and submitted the appellant’s disability 8 retirement application to OPM despite the appellant’s lack of cooperation and abusive language and behavior toward agency counsel. CRF, Tab 1 at 5, Tab 19 at 9-13. The agency also provided evidence that OPM approved the application. CRF, Tab 19 at 16, 21. Although the appellant variously insists that the application was untimely filed or that the benefits awarded were for a shor ter time frame than expected due to the agency’s original failure to submit his application, he has not provided anything to substantiate these claims. Moreover, the settlement agreement expressly disclaimed any guarantee by the agency that the appellant would be deemed eligible for disability retirement. See CID at 6. It follows, therefore, that the settlement agreement did not guarantee that the appellant would receive a certain amount in benefits or that the benefits would flow from a certain date. T he appellant has not pointed to any specific error in the agency’s portion of the application forms that could have impacted the starting date or amount of his benefits. Indeed, as the agency pointed out, the appellant himself refused to submit an updated version of the SF -3107 as requested by OPM, and it is not clear what effect, if any, such refusal may have had on his application. Accordingly, we find that the agency has complied with its obligations. ¶14 Although the appellant seeks to rescind the settlem ent agreement and reinstate his removal appeal due to the original breach of the agreement, we hold that such relief is inappropriate where, as here, the agency has cured the breach and the appellant has received the full benefit of his bargain. See Tretc hick v. Department of Transportation , 109 F.3d 749 , 752 (Fed. Cir. 1997) (rejecting suggestion that there is an “absolute right” to rescission in response to a breach and rejecting rescission where any purported breach had been cured) ; King v. Department of the Navy , No. 98 -3342, 1999 WL 37406, at *2 (Fed. Cir. Jan. 12, 9 1999) (unpublished)4 (affirming denial of rescission where the agency had cured its breach of the settlement agreement 6 years later, and the appellant provided no evidence that she was harmed by the breach or the delay in curing it); cf. Lutz v. U.S. Postal Service , 485 F.3d 1377 , 1381 -82 (Fed. Cir. 2007) (finding material breach potentially justifying rescission where “negative statements contained in” the agency forms “prejudiced the disability proceedings” and resulted in denial of benefits) . Thus, assuming arguendo that the agency’s breach was materia l— which the administrative judge did not address, and we need not now decide —we find that, as in Tretchick , rescission is inappropriate because the agency cured its breach of the agreement and the appellant received all the benefits to which the agreement entitled him. Although it is conceivable that the appellant might have received his disability retirement benefits sooner if the agency had not lost his original application, the settlement agreement did not require that the agency act within a particular time frame. It merely required that the agency cooperate with the appellant “when/if” the appellant applied for disability retirement , which the agency ultimately did, such that the application was granted . This is in contrast to the situation in Lutz , 485 F.3d at 1381 -82. It is also distinguishable from Lary v. U.S. Postal Service , 472 F.3d 1363 (Fed. Cir. 2006), clarified on denial of rehea ring, 493 F.3d 1355 (Fed. Cir. 2007), in which the agency’s failure to provide necessary documents within the specific time frame set by the settl ement agreement caused the appellant’s disability retirement application to be denied as untimely filed . That is not the case here, where the agency ultimately managed to timely file the application on the appellant’s behalf. Moreover, the appellant base d his rescission request on his erroneous belief that the agency did not timely submit his application to OPM. CRF, Tab 12 at 4 -5. If the appellant believes OPM’s annuity calculation is incorrect as to the substance or the starting date of 4 The Board may follow a nonprecedential decision of a court when it finds its reasonin g persuasive, as we do here. Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 16 n.6. 10 the benefits, he separately may challenge OPM’s decision in accordance with the documentation provided to him by OPM with regard to his appeal rights.5 ¶15 We deny the appellant’s various other claims as outside the scope of this proceeding. His claim that the agency illegally accessed his medical records was denied in his second compliance proceeding, Wine v. Department of the Interior , MSPB Docket No. DA -0752-18-0116 -C-2, Compliance File , Tab 28, Compliance Initial Decision at 4 -6, and the appellant did not seek further review of that decision. His claims regarding whistleblower reprisal and violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) are before the Board in three separate appeals, as explained above, supra ¶ 4 n.3, and are not part of this case. His attempts t o relitigate another forum’s denial of his workers compensation benefits likewise are not properly before us and are not relevant to this case. In light of the disposition reached in this decision, we deny the various motions to strike, for sanctions, for transfer of this matter to a United States district court , and other forms of relief sought by the parties .6 ¶16 Having found the agency in compliance, we dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Boar d 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)). 5 We express no opinion on whether any such challenge would be timely. 6 We deny the appellant’s request that Member Leavitt recuse himself on the basis of having “sabotaged” the appellant’s whistleblower claims at the Office of Special Counsel. See CRF, T ab 21 at 4. Member Leavitt was not employed by the Office of Special Counsel during the relevant time frame; and even if he had been, the appellant has offered no specifics regarding the alleged sabotage or other purported conflict of interest. Although Member Limon has recused himself from this case, his recusal is not related to the appellant ’s claims of conflict or bias. 11 NOTICE OF APPEAL RIG HTS7 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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, 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 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 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: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for 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 14 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C ), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for 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 8 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Board n either 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 li nk below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WINE_MITCH_DA_0752_18_0116_X_1_FINAL_ORDER_2001830.pdf	2023-02-10	null	DA-0752	NP
3,569	https://www.mspb.gov/decisions/nonprecedential/WINE_MITCH_DA_1221_21_0342_W_1_FINAL_ORDER_2001831.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MITCH WINE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-1221 -21-0342 -W-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mitch Wine , Mountain View, Arkansas, pro se. Mikayla Martinez and Jamelda Burton -Domino , Dallas, Texas, for the agency. Kacy Coble , North Little Rock, Arkansas, for the agency. Tijuana Griffin , Little Rock, Arkansas, for the agency. Bradley M. Shaughnessy , Esquire, Fayetteville, Arkansas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did not participate in the adjudication of this appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any fu ture decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed this appeal about the agency’s handling of his medical records and requests for benefits for lack of jurisdiction . On petition for review, the appellant argues that the Board has jurisdiction over these matt ers as an individual right of action appeal concerning whistleblower reprisal , even if he was neither an employee nor an applicant for employment when the agency engaged in alleged whistleblower reprisal or other improprieties .2 Generally, we grant petiti ons such as this one only in th e 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 cas e; 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 petiti on for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 2 Long after the appellant’s petition for review, the agency’s response, and the appellant’s reply were filed , Petition for Review (PFR) File, Tabs 2, 4 -6, but while this petition remained pending, the appellant requested leave to file new argument and evidence , PFR File, Tab 8. According to the appellant, this new argument and evidence would pertain to new alleged improprieties by the agency —ones he characterizes as the placement of a “patient recor d flag” in his medical records —in violation of whistleblower protection laws, disclosure laws, and the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) . Id. at 4 -6. The appellant’s request is denied. If the appellant believes that a new cause of action within the Board’s jurisdiction has arisen while he awaited a decision in this case, he can file a new Board appeal. 3 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for 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: 3 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. 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 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 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 respec tive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal 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 6 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows 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. 7 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	WINE_MITCH_DA_1221_21_0342_W_1_FINAL_ORDER_2001831.pdf	2023-02-10	null	DA-1221	NP
3,570	https://www.mspb.gov/decisions/nonprecedential/WINE_MITCH_DA_4324_21_0377_I_1_FINAL_ORDER_2001832.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MITCH WINE, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DA-4324 -21-0377 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mitch Wine , Mountain View, Arkansas, pro se. Lindsey Gotkin , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did n ot participate in the adjudication o f this appeal . FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal with prejudice . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requ ired to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review. Except as expressly MODIFIED to address the appellant’s Appointments Clause claims , we AFFIRM the initial decision. ¶2 The appellant filed this appeal in August 2021 alleging that the agency had violated the Unifo rmed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) by failing to reemploy him. Initial Appeal File (IAF), Tab 1 at 4. In Octobe r 2021, the agency filed a request for sanctions. IAF, Tab 18. The agency alleged that in response to a request that the appellant not communicate directly with agency employees, the appellant sent several emails to agency counsel with threatening and inappropriate language. Id. at 4-7, 10-15. The agency requested a variety of sanctions up to and including dismissal of the appeal. Id. at 8-9. The appellant opposed the agency’s request and requested sanctions against the agency for alleged felonies and violations of the appellant’s Constituti onal rights. IAF, Tab 19. The administrative judge denied the agency’s request to sanction the appellant because the Board had not warned him about his conduct during the processing of this appeal. IAF, Tab 21 at 3. However, the administrative judge explicitly warned the appellant that if he engaged in any further instances of unacceptable conduct in relation to parties, wit nesses, or Board personnel, 3 the Board would issue sanctions “that may include dismissal of this appeal with prejudice.” Id. The administrative judge denied the appellant’s motion for sanctions. Id. at 4. ¶3 Less than a month later, the agency filed another request for sanctions. IAF, Tab 30. The agency alleged that after the administrative ju dge had warned the appellant about his conduct, the appellant engaged in several further incidents of inappropriate and/or threatening communications towards agency employees. Id. at 7-8. The agency again requested dismissal of the appeal with prejudice. Id. at 8. The appellant responded in opposition to the agency’s motion. IAF, Tab 31. While the motion for sanctions was pending, the appellant requested certification of an interlocutory appeal regarding several prior rulings by the administrative jud ge. IAF, Tab 35. After the administrative judge denied his request, IAF, Tab 36, the appellant filed an objection in which he called the administrative judge a liar , described him as lazy and corrupt, and accused him of committing felonies, IAF, Tab 37. He also repeatedly threatened to perform citizen ’s arrests of agency officials who he alleged were withholding evidence and asserted that such arrests could involve the use of lethal force. Id. ¶4 On November 18, 2021, the administrative judge issued a n order to the appellant to show cause why he should not be sanctioned for unacceptable conduct and failures to comply with Board orders. IAF, Tab 38. He specifically cited the “inflammatory comments” made in the appellant’s objection to the denial of his req uest for an interlocutory appeal. Id. at 1. The administrative judge gave the appellant until November 22, 2021 to respond to the show cause order. Id. at 2. The appellant filed a timely response on November 19, 2021. IAF, Tab 39. In his response, he called the administrative judge lazy and incompetent and accused him of committing crimes. Id. at 5 -6. The appellant filed two additional pleadings related to the merits of his appeal on November 21, 2021. IAF, Tabs 40 -41. On November 23, 2021, the da y after the deadline set by the administrative judge, the appellant filed another response to 4 the show cause order. IAF, Tab 42. In addition to suggesting that officials of the Board and the Office of Special Counsel were biased against him, the appellan t argued for the first time in that pleading that the administrative judge was not properly appointed under the Appointments Clause of the U.S. Constitution. Id. at 5-6. ¶5 The administrative judge issued an initial decision dismissing the appeal on November 23, 2021. IAF, Tab 43, Initial Decision (ID). The administrative judge acknowledged the appellant’s pleading filed earlier the same day but found that it was untimely. ID at 7. The administrative judge determined that despite clear warnings2 regarding his conduct in relation to this appeal, the appellant repeatedly engaged in unacceptable conduct “which includes both direct and indirect threats to multiple individuals.” ID at 8. He therefore concluded that the severe sanction of dismissal with prejud ice was warranted. Id. ¶6 The appellant has filed a timely petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. He argues that the administrative judge failed to timely decide his appeal on the merits , and he challenges the administrative judge’s rulings on jurisdictional and discovery matters. Id. at 4-7. He also reiterates his argument regarding the appointment of the administrative judge. Id. at 7. The appellant has filed a supplement to his petition for review that fur ther addresses the appointment of the administrative judge. PFR File, Tab 2. The agency has filed a response in opposition to the petition for review, PFR File, Tab 4, and the appellant has filed a reply, PFR File, Tab 5. 2 In addition to the warning included in his order denying the agency’s first motion for sanctions, the administrative judge also cited a September 14, 2021 letter from the Office of the Clerk of the Board regarding the appellant’s interactions with the Board. ID at 3 -4, 8. 5 The appellant did not timely rai se his argument regarding the appointment of the administrative judge . ¶7 As noted above, the appellant first raised his argument regarding the appointment of the administrative judge in his untimely supplemental response to the administrative judge’s show cause order. IAF, Tab 42. The Board held in McClenning v. Department of the Army , 2022 MSPB 3 , that such claims are subject t o its existing regulations and precedent requiring parties to timely raise issues during Board adjudications. Among other things, the Board’s regulations provide that the Board generally does not accept arguments raised after the close of the record befor e the administrative judge. Id., ¶ 11; 5 C.F.R. § 1201.59 (c). The regulations allow new arguments to be raised only if they were not readily available before the record closed or are in rebuttal to new argument raised by the other party just before the record closed. 5 C.F.R. § 1201.59 (c). We find that neither of those conditions is met in this case and that therefore the administrative judge properly did not consider the appellant’s November 23, 2021 submission. See McClenning , 2022 MSPB 3 , ¶¶ 12-13 (finding that discovery of a new legal argument regarding the Appointments Clause does not excuse the failure to raise that claim before the close of the record). Because the appellant did not timely raise his Appointments Clause argument before the administrative judge, we will not consider it on petition for review. Id., ¶ 25. The administrative judge acted within his discretion by dismissing the appeal with prejudice. ¶8 An administrative judge may impose sanctions upon the parties as necessary to serve the ends of justice. 5 C.F.R. § 1201.43 . Before imposing a sanction, the judge shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record. Id. The sanction of dismissal with pre judice is a severe sanction, and the Board ha s held that it should only be imposed when: (1) a party has failed to exercise due diligence in complying with Board orders; or (2) a party 6 has exhibited negligence or bad faith in its efforts to comply. Morri s v. Department of the Navy , 123 M.S.P.R. 662, ¶ 12 (2016). ¶9 Here, the administrative judge explicitly warned the appellant after the agency submitted emails in which the appellant made a number of extremely inappropriate comments. For example, those emails included the following statements: (1) “I know you’d like [agency official] to rape more women ”; (2 ) “Fuck you. If you want to fight, then come get me. Bring your punk husband. See what happens to him” ; (3) “I’ll bring [agency official] to justice in ways he wishes weren’t legal” ; (4) “You want to square up with me? You’d last seconds.” IAF, Tab 18 at 10-11. The administrative judge explicitly warned the appellant that further unacceptable conduct could result in the dismissal of his appeal. IAF, Tab 21. Despite that warning, the appellant filed a pleading in which he repeatedly insulted the admi nistrative judge and thr eatened to use deadly force in c itizen’s arrests of agency officials. IAF, Tab 37. Then, in response to an order to show cause why his appeal should not be dismissed as a sanction, the appellant repeated several of his insults tow ards the administrative judge . He ended his response to the show cause order as follows: “If [the administrative judge] is too cowardly to hold an oral conference to discuss matter s or to do his taxpayer funded job an d adjudicate this case, then he certa inly does not want to risk lawful citizen’s arrest.” IAF, Tab 39 at 7. ¶10 Determinations regarding the imposition of sanctions are left to the sound discretion of the administrative judge , and the Board will not overturn such determinations absent an abuse o f that discretion. Davis v. Department of Commerce , 120 M.S.P.R. 34, ¶ 18 (2013) . We find that the administrative judge did not abuse his discretion in dismissing the appeal with prejudice in light of the appellant’s conduct. Despite explicit warnings a bout his conduct, the appe llant remained defiant and insulting in his pleadings. He informed the administrative judge that he would not comply with the Board’s “unlawful order” and repeated his threats to use force against agency officials who he claimed were acting 7 illegally. IAF, Tab 37 at 5. Even after the administrative judge ma de clear that he was considering dismissal of the appeal as a sanction, the appellant escalated his insulting and threatening comments towards the administrative judge. IAF, Tab 39. We find that the appellant’s repeated failure to comply with the adminis trative judge’s orders and his defiance in response to warnings from the administrative judge constitute a lack of due di ligence and demonstrate that he was acting in bad faith. We therefore find that dismissal was appropriate. See Morris , 123 M.S.P.R. 662, ¶ 14 (dismissing a petition for review for repeated failure to comply with directions from the Clerk of the Board and using inappropriate and insulting language towards Board employees). 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 an d the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although 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. 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, th e Board cannot advise which option is most appropriate in any matter. 8 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have quest ions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must fil e a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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 9 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 discrimination based on race, color, 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: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Was hington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5 SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no ch allenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit o r any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	WINE_MITCH_DA_4324_21_0377_I_1_FINAL_ORDER_2001832.pdf	2023-02-10	null	DA-4324	NP
3,571	https://www.mspb.gov/decisions/nonprecedential/WINE_MITCH_DA_1221_16_0513_W_2_FINAL_ORDER_2001833.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MITCH WINE, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DA-1221 -16-0513 -W-2 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mitch Wine , Mountain View, Arkansas , pro se . Annette Tarnawsky , Esquire, and John Austin , Esquire, Knoxville, Tennessee, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Member Limon recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of a ction appeal . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of 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. Except as expressly MODIFIED to clarify the applicable legal standards and supplement the administrative judge’s analysis of the agency’s burden of proof , we AFFIRM the initial decision. BACKGROUND ¶2 The following facts, as further detailed in the initial decision and record, appear to be undisputed. At all times relevant to this appeal, the appellant worked for the Department of the Interior’s Fish and Wildlife Service (FWS). Wine v. Department of th e Interior , MSPB Docket No. DA -1221 -16-0513 -W-2, Refiled Appeal File (RAF), Tab 6, Initial Decision (ID) at 2.2 From June 2003 to October 2014, he worked as a Transportation Liaison where in his duties included coordinating with the Arkansas Highway and Tr ansportation Department 2 To accommodate scheduling conflicts, the administrative judge dismissed the appellant’s initial appeal without prejudice, for automatic refiling at a later date. Wine v. Department of the Interior , MSPB Docket No. DA -1221 -16-0513 -W-1, Initial Appeal File, Tab 114 , Initial Decision . It was refiled on the appointed date as MSPB Docket No. DA -1221 -16-0513 -W-2. 3 (AHTD), the Federal Highway Administration (FHA), and other entities to mitigate the environmental impact of transportation projects. Id. ¶3 In 2011, the appellant purchased a tract of land, and in the years that followed he sought ou t a Nationwide Permit (NWP) from the United States Army Corps of Engineers (USACE) to use that land as a mitigation bank —in his personal capacity, through a limited liability corporation he owned. ID at 2 -3; see, e.g ., Wine v. Department of the Interior , MSPB Docket No. DA -1221 -16- 0513 -W-1, Initial Appeal File (IAF), Tab 41 at 23, Tab 45 at 4 -10. The appellant has described mitigation banking in a succinct manner that is useful background information endorsed by the agency. Wine v. Department of the Interior , MSPB Docket No. DA -1221 -16-0513 -W-2, Petition for Review (PFR) File, Tab 7 at 7 -8, Tab 15 at 6. In short, mitigation is required for projects that will negatively impact the waters of the United States. PFR File, Tab 7 at 7. This is accomplish ed through various means, including compensation. Id. Compensation involves a system regulated by the USACE wherein an entity compensates for the damage it causes to one parcel through the repair of another. Id. In practice, this works as follows: If, for example, the AHTD is unable to avoid or minimize damage to a waterway during the construction of a highway, that damage is assigned a number of mitigation credits. Id. at 7 -8. The AHTD then purchases a corresponding number of mitigation credits from a mitigation banker, i.e. , a separate individual or entity that generated credits through restoration projects. Id. ¶4 In September 2013, the appellant sought and received agency approval to engage in outside employment —mitigation banking. ID at 3 -4; IAF, Tab 13 at 125-27. A year later, in October 2014, the appellant left his Transportation Liaison position to become the agency’s Karst and Cave Biologist. ID at 4. Despite this change in position, the appellant’s FWS work continued to involve the AHTD and other outside entities. For example, in his new role, the appellant assessed whether AHTD projects adversely affected the groundwater and 4 endangered species in the Karst region. ID at 15. In October 2014, just after the change in his FWS position, the appellant received the NWP he had been seeking for his personal mitigation bank. ID at 3; IAF, Tab 46 at 5 -6. ¶5 Between February and May 2015, the appellant reported what he believed were violations of the Endangered Species Act, the Clean Water Act, and th e National Environmental Policy Act in connection with several AHTD projects, as well as a sewer project for the City of Centerton. ID at 4. Around this same period, the appellant actively solicited both the AHTD and the USACE regarding the mitigation cr edits he had to offer. ID at 5. ¶6 In June 2015, the USACE contacted the FWS, expressing ethics concerns about the appellant —concerns the USACE described as being shared by the AHTD and the FHA. ID at 5 -6. Specifically, the USACE recounted the appellant’s “decreasingly professional demeanor” in the form of aggressive telephone calls and emails, as well as a perceived conflict of interest between the appellant’s FWS position and his mitigation banking. Id.; IAF, Tab 11 at 116 -17. For example, the USACE off icial recounted how the appellant had, at times, called staff to discuss both his FWS work and mitigation banking work in the same lengthy telephone call. IAF, Tab 11 at 116. This USACE official also recounted how the appellant had essentially worked on certain AHTD projects in his FWS role, then claimed violations on those projects, and then hoped for or expected AHTD to resolve the matter by purchasing the mitigation credits he personally had available for sale . Id. at 116 -17. ¶7 In August 2015, the appe llant’s employing agency —FWS —hired an outside firm to investigate USACE’s allegations. ID at 6 -7; see, e.g ., IAF, Tab 11 at 73. Around that same time, the appellant completed a 2 -week detail assignment. ID at 35; see, e.g ., IAF, Tab 11 at 126. After th e conclusion of its investigation, the agency issued a January 2016 letter asking the appellant to either cease his mitigation banking or resign from his FWS position, effectively rescinding the 5 approval for outside activity that had been granted 2 years e arlier.3 ID at 7; IAF, Tab 11 at 20 -22. The agency subsequently issued a March 2016 memorandum of expectations that, among other things, prohibited him from communicating with USACE or AHTD on official time, with some exceptions, and reassigned some of his duties. ID at 7 -8; IAF, Tab 10 at 60 -61. ¶8 The appellant filed two complaints with the Office of Special Counsel (OSC), alleging that the agency had subjected him to whistleblower reprisal. ID at 8-9. He later filed the instant IRA appeal alleging the same. IAF, Tab 1. ¶9 After developing the record and holding the requested hearing, the administrative judge denied the appellant’s request for corrective action. ID at 2. She first found that the appellant met his burden of proving that he made protected disclosures , which generally pertained to violations of environmental laws, and those protected disclosures were a contributing factor in 4 alleged personnel actions: the 2 -week detail assignment ( Personnel Action 1 ); the decision to rescind his approval to engage in outside activity ( Personnel Action 3); the restriction on his communications with USACE and AHTD (Personnel Action 4 ); and the reassignment of certain duties ( Personnel Action 5).4 ID at 13 -20, 22 -32. Although the appellant alleged that the agency’s investigation ( Personnel Action 2 ) constituted another covered personnel action, the administrative judge found otherwise. ID at 20 -22. Because she found that the appellant establish ed a prima facie case of reprisal, the administrative judge shifted the burden and found that the agency proved that it would have taken the 3 In the initial decision, the administrative judge identified this letter as dated December 2015, but the associated citation and description corresponds to a letter dated January 2016. Compare ID at 7, with IAF, Tab 11 at 20 -22. The appellant has also, at times, referred to this memorandum as being dated December 2015. PFR File, Tab 7 at 30. For the sake of clarity, our decision will exclusively refer to the January 2016 date. 4 For the sake of clarity, we will utilize the same identifying descriptors from the initial decision —Personnel Actions 1 -5. 6 same actions in the absence of the appellant’s protected whistleblowing. ID at 32-55. ¶10 The appellant has filed a pe tition for review. PFR File, Tab 7. The agency has filed a response, and the appellant has replied. PFR File, Tabs 15, 18. The appellant has since filed t hree motions . PFR File, Tabs 19 -20, 27. In the first, the appellant’s attorney requested oral ar gument before the Board, simply citing “the complexity of the matter.” PFR File, Tab 19. That request is denied. See New v. Department of Veterans Affairs , 99 M.S.P.R. 404 , ¶ 13 (2005) (denying a request for oral argument where the appellant failed to indicate what would be presented at oral argument or show that such argument would add to the proceedings); Social Security Administration v. Harty , 96 M.S.P.R. 65 , ¶ 13 (2004) (same). In the second, filed by the appellant himself because he terminat ed his representative , the appellant requests leave to submit additional arguments and evidence . PFR File, Tab 20 at 4 , Tab 23 at 2 . The agency presented an argument in opposition , after the Clerk of the Board denied the agency’s attempt to submit evidence in opposition . PFR File, Tab s 22, 24. It seems that the basis for the appellant’s request , which the agency opposes, is a combination of dissatisfaction with his attorney’s choices, documents from 2016 that he recently discovered, and a new legal theory. PFR File, Tab 20 at 4-6. The appellant’s request is denied. See, e.g ., 5 C.F.R. § 1201.114 (a) (recognizing the pleadings allowed on review); Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (the Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and mate rial evidence not previously available despite the party’s due diligence); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (the Board will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); see also Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989) (to constitute new and material evidence, the information contained in 7 the documents, not just the documents themselves, m ust have been unavailable despite due dil igence when the record closed). For the same reasons, we also deny the appellant’s third motion , which also seeks an opportunity to present additional arguments and evidence, this time regarding what the appellant describes as medical evidence proving that he was harmed by agency reprisal. PFR File, Tab 27. ANALYSIS ¶11 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112 -199, 126 Stat. 1465, the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that (1) he 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 facto r in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A) . Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his claim, which he must prove by prep onderant evidence. Id. ¶12 If the appellant proves that his protected disclosure or activity was a contributing factor in a personnel action taken against him, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Id. In determining whether the agency has met this burden, the Board will c onsider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and streng th of any motive to retaliate on the part of the agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers, but who are otherwise similarly situated. Carr v. Social S ecurity Administration , 185 F.3d 8 1318 , 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete elements, each of which the age ncy must prove by clear and convincing evidence, but rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73 , ¶ 11 (2010). The U.S. Court of Appeals for the Federal Circuit has added that “[e]vidence only clearly and convincingly supports a conclusion when i t does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012). The scope of this appeal is limited to the person nel actions that were identified in the prehearing summary. ¶13 There appears to be no dispute that the appellant met the exhaustion requirement regarding several alleged personnel actions. See, e.g ., IAF, Tab 54 at 45-46, 50 -51. In his complaints to OSC, the appellant alleged that he disclosed violations of the Enda ngered Species Act, the Clean Water Act, and the National Environmental Policy Act by the AHTD, USACE, and City of Centerton, IAF, Tab 4 at 38, 45 -46, Tab 38 at 14 -15, 21 -22, after which FWS engaged in retaliation in the form of an investigation ( Personnel Action 2 ), IAF, Tab 4 at 40, 46, Tab 38 at 22, the decision to rescind his approval for outside activity (Personnel Action 3 ), IAF, Tab 4 at 40, 47, Tab 38 at 16, 22 -23, the restriction on his communications with USACE and AHTD ( Personnel Action 4 ), IAF, Tab 4 at 40, 47 -48, Tab 38 at 16, 23, and the reassignment of certain job duties (Personnel Action 5 ), IAF, Tab 4 at 47 -48.5 ¶14 On review, the appellant suggests that the administrative judge erroneously limited the scope of his appeal to exclude two other al leged personnel actions: the agency’s January 2016 letter rescinding the approval for outside activity and 5 We will not address Personnel Action 1 in this decision , since neither party raised it on review and the appellant has seemingly abandoned the claim. 9 its March 2016 memorandum of expectations. He seems to suggest that the documents constitute additional personnel actions, above and beyond Personn el Actions 3 -5, the personnel actions first identified within those documents. PFR File, Tab 7 at 30. He also alludes to a hostile work environment, as if that may have been yet another personnel action. Id. at 28. However, the appellant did not raise these as personnel actions below, in response to the administrative judge’s prehearing summary, which identified the only issues to be considered. IAF, Tab 94 at 2 -3. Accordingly, we will not consider them on review. See Crowe v. Small Business Administ ration , 53 M.S.P.R. 631 , 634 -35 (1992) (explaining that an issue is not properly before the Board when it is not included in the administra tive judge’s memorandum summarizing the prehearing conference, which states that no other issues will be considered, unless either party objects); see also Durr v. Department of Veterans Affairs , 119 M.S.P.R. 195 , ¶ 16 n.2 (2013) (applying this principle in the context of a new theory of alleged whistleblower retaliation that was not among the issues considered before the administrativ e judge, even if that theory had been exhausted before OSC). The appellant is not entitled to corrective action for Personnel Action 2 . ¶15 As mentioned above, there is no dispute that the appellant met his burden of proving exhaustion for the matters properly before us on review , including Personnel Actions 2 -5. Supra ¶ 13. Similarly undisputed is t he administrative judge ’s finding that the appellant made protected disclosures . ID at 13-19. Generally speaking, those disclosures involved his various reports of construction projects either causing environmental damage or failing to meet applicable standards in violation of the Endangered Species Act, the Clean Water Act, and the National Environmental Policy Act . ID at 13 -15. For example, the appell ant disclosed that the AHTD’s work on a particular project —Highway 5—had resulted in a nearby stream’s contamination, as demonstrated by his measurement of turbidity, which would adversely affect species in the region. ID at 14 -15; see, e.g., IAF, Tab 4 a t 53-56, Tab 14 at 130 . The appellant made these disclosures to 10 numerous officials or entities, including his chain of command, the Arkansas Department of Environmental Qualify (ADEQ) , the USACE, and the U.S. Attorney’s Office for the Eastern District of Arkansas. ID at 15 -18. In fact, for the aforementioned example, ADEQ responded to the appellant’s disclosure by investigating and determining that the AHTD had failed to utilize proper controls to prevent contamination. ID at 15; IAF, Tab 4 at 51 -52, 58 -59. Further, the appellant’s first - and second -level supervisors both testified that they agreed with at least some of the appellant’s assessment s of environmental violations , and his disclosures resulted in the remediation of multiple sites .6 ID at 16 -17. ¶16 It is also undisputed that the appellant’s protected disclosures were close enough in time to satisfy the contributing factor criterion for Personnel Actions 2-5. ID at 30 -32. However, w hat is disputed on review is whether Personnel Action 2 const ituted a covered personnel action and, if so, whether the agency proved that it would have taken the same action in the absence of the appellant’s whistleblowing. The administrative judge found that the appellant failed to meet his burden of presenting a prima facie case of whistleblower reprisal regarding the agency’s investigation, Personnel Action 2 , because that investigation was not a covered personnel action. ID at 20 -22. On review, the appellant reasserts that the agency’s investigation was a cove red personnel action, and it would not have occurred in the absence of his whistleblowi ng. PFR File, Tab 7 at 10 -19. ¶17 A “personnel action” is defined as follows: (i) appointments; (ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplin ary or 6 The administrative judge recognized that the appellan t’s disclosures were “related to” his duties. ID at 12. However, she noted that the appellant’s supervisor provided testimony indicating that at least some of the appellant’s disclosures were outside his normal duties , and the agency does not appear to h ave argued otherwise . ID at 16 ; PFR File, Tab 15 at 10 . Accordingly, this appeal does not appear to implicate 5 U.S.C. § 2302 (f)(2), the provision identifying a heightened legal burden in cases t hat involve a disclosure made in the normal course of duties of an employee. 11 corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements; (vi) restorations; (vii) reemployments; (viii) performance evaluations under 5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or awards, or involving education or training if it reasonably may be expected to lead to an appointment, promotion, performance evaluation, or other action described in 5 U.S.C. § 2302 (a)(2)(A); (x) decisio ns to order psychiatric testing or examination; (xi) implementations or enforcements of any nondisclosure policy, form, or agreement; and (xii) any oth er significant changes in duties, responsibilities, or working conditions. 5 U.S.C. § 2302 (a)(2)(A); Spivey v. Department of Justice , 2022 MSPB 2 4, ¶ 6. In arguing that the agency’s investigation constitutes a covered personnel action, even though it is not specifically enumerated in section 2302(a)(2)(A), the appellant presents a two-fold argument about the law, followed by an argument about the facts. We will address each in turn. The Applicable Standard7 ¶18 The appellant first refers us to a change in the law between the Whistleblower Protection Act (WPA) and the WPEA . PFR File, Tab 7 at 10 -11. Among other things, the latter added 5 U.S.C. § 1221 (g)(4) to the relevant statutory scheme. See WPEA § 104. That provision provides as follows: “Any corrective action ordered under this section to correct a prohibited personnel practice may inc lude fees, costs, or damages reasonably incurred due to an agency 7 Though not raised by the appellant, we recognize that the National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on December 12, 2017 , just after the issuance of the initial decision in the instant appeal. Spivey , 22 MSPB 24 , ¶ 5 n.1. In parti cular, Congress added a provision to 5 U.S.C. § 1214 that allows OSC to petition the Board for corrective action concerning damages incurred by an employee due to an agency’s investigation of the employee if it was commenced, expanded, or extended in retaliation for protected whistleblowing activity. Id.; see 5 U.S.C. § 1214 (i). Regardless of questions concerning retroactivity, the provisi on does not apply to the instant IRA appeal because OSC has not petitioned the Board for such relief. Spiv ey, 2022 MSPB 24 , ¶ 5 n.1. 12 investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective acti on.” 5 U.S.C. § 1221 (g)(4). According to the appellant, the addition of section 1221(g)(4) shows that Congress intended to expand whistleblower protections to include retaliatory investigations as actionable personnel actions, on their own. PFR File, Tab 7 at 10 -11. We disagree. ¶19 Section 1221(g)(4) does not create a separate cause of action fo r retaliatory investigations. In fact, the legislative history shows that Congress considered and rejected the option of changing the standard developed under the WPA and Board precedent to recognize a retaliatory investigation as a personnel action becau se Congress wanted to avoid discouraging agencies from undertaking legitimate and necessary inquiries. See S. Rep. No. 112-155, at 20 -22 (2012) , as reprinted in 2012 U.S.C.C.A.N. 589, 608 -09 (referencing Russell v. Department of Justice , 76 M.S.P.R. 317 , 323-25 (1997)). Congress opted to instead authorize an award of consequential damages once an employee is able to prove a claim u nder the WPA, if the employee can further demonstrate that an investigation was undertaken in retaliation for the protected disclosure. Id. at 21 -22; see 5 C.F.R. § 1201.202 (b)(2). Acc ordingly, the appellant’s first argument about his retaliation by investigation claim fails. ¶20 The appellant’s second argument, in the alternative, is that the agency’s investigation qualified as a covered personnel action, even before the WPEA’s addition of section 1221(g)(4). PFR File, Tab 7 at 11. He asserts that “a retaliatory investigation was considered a personnel action if it was a pretext for gathering evidence to retaliate.” Id. (citing Russell , 76 M.S.P.R. at 323 -24). On this point, we again di sagree. The appellant appears to misunderstand Board precedent. ¶21 An investigation into an allegation of misconduct is not a personnel action per se. Spivey , 2022 MSPB 24 , ¶ 10. Instead, the investigation must otherwise fit 13 within one of the items listed under section 2302(a)(2)(A) to constitute a covered personnel action. See id . (discussing S. Rep. No. 112 -155, at 20). Howev er, even if the investigation does not constitute a significant change in working conditions or other personnel action enumerated in section 2302(a)(2)(A), the Board will consider evidence of the conduct of an agency investigation when it is so closely related to a personnel action that it could have been pretext for gathering evidence to retaliate. Spivey , 2022 MSPB 24 , ¶ 10; Russel l, 76 M.S.P.R. at 323-24. In considering such evidence, the Board looks at where the investigation had its beginnings. Russel l, 76 M.S.P.R. at 324. ¶22 The Board’s decision in Mangano v. Department of Veterans Affairs , 109 M.S.P.R. 658 (2008) , best illustrates how the appellant’s assertions about the applicable standard are mistaken. The appellant in Mangano argued that the admin istrative judge erred by finding that two investigations —an Administrative Investigation Board (AIB) and a Quality Improvement Review (QIR) —were not personnel actions. Id., ¶¶ 3, 36. The Board did not adopt the appellant’s position , and the Board did not find that the agency’s investigations were covered personnel actions . Id., ¶¶ 36 -44. Instead, the Board recognized that the AIB and QIR investigations were so closely related to the misconduct charge underlying the appellant’s removal that they could ha ve been pretext for gathering evidence to use to retaliate for his whistleblowing. Id., ¶ 44. In doing so, the Board discussed how the QIR was convened by the subject of the employee’s whistleblowing and was conducted in an unusual manner, and the agency included the AIB results in its misconduct charge against the employee in a way that was inconsistent with the investigatory results. Id. Under those circumstances , the Board concluded that the appellant’s allegation of retaliation by investigation concerning the AIB and QIR should be considered on remand in determining the strength of the agency’s ev idence supporting the appellant’ s removal. Id. In other words, the alleged retaliation by investigation was not a separate personnel action subject to its own burden -shifting analysis. Instead, the Board would 14 consider the alleged retaliation by investigation as part of the burden -shifting analysis of a personnel action that is enumerated in section 2302(a)(2)(A). Applying the Applicable Standard to This Appeal ¶23 Turning back to the instant appeal, the administrative judge found that the appellant failed to establish that the investigation constituted a personnel action as defined in section 2302(a)(2)(A), or that the investigation was a pretext for gathe ring evidence to retaliate for his whistleblowing. ID at 20 -22. She further found that even if the appellant had met his burden regarding Personnel Action 2 , the agency met its burden of proving that it would have conducted the investigation in the absen ce of the appellant’s whistleblowing activity. ID at 36-46, 52 -55. We agree with the administrative judge’s findings of fact. However, we modify the initial decision to apply those findings of fact to the proper standards, which we just described. ¶24 Again, an investigation is not a personnel action, per se. Supra ¶ 21. Furthermore, we found no substantive argument or evidence establishing that the investigation at issue in this appeal, which was conducted by an outside party, constituted a significant change in the appellant’s working conditions or other enumerated personnel action, as defined in section 2302(a)(2)(A). ¶25 The more relevant question is whether retaliation by investigation tainted any personnel action that is enumerated in section 2302(a)( 2)(A). See supra ¶¶ 21-22. To the extent that the administrative judge applied the burden shifting framework to the appellant’s retaliation by investigation claim, as if it might be a separate personnel action, she erred. ID at 36 -46, 52 -55; see Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014) (stating that the Board may not proceed to the clear and convincing evidence test unless it has first determined that the appellant established his prima facie case), aff’d , 623 F. App’x 1016 (Fed. Cir. 2015). Nevertheless, we find no basis for disturbing the und erlying findings of fact about the legitimacy or nonretaliatory nature of the investigation, findings which are more appropriately considered in 15 connection with whether the agency would have taken Personnel Actions 3 -5 in the absence of the appellant’s whi stleblowing. See Mangano , 109 M.S.P.R. 658 , ¶ 44; supra ¶ 22. ¶26 Although the appellant reasserts that the investigation was a pre text for retaliati on, PFR File, Tab 7 at 11, he has failed to present any persuasive basis for us to disturb the administrative judge’s findings to the contrary, which are largely based on hearing testimony and credibility determinations regarding several witnesses from multiple agencies, ID at 21 -22, 36 -46, 52 -55; see Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (recognizi ng that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing). The appellant suggests that the USACE complaint and ensuing investigation was a coordinated effort between officials at USACE and his management chain to stop his whistleblowing. PFR File, Tab 7 at 11-13 (citing IAF, Tab 48 at 32). Yet the only evidence to which the appellant refers us is not supportive. IAF, Tab 48 at 32. Instead, that evidence merely shows that the appellant’s management chain was concerned about the precise matters raised in USACE’s complaint —the appellant’s tone and professionalism when dealing with outside entities and t he propriety of his mitigation banking while employed at FWS. Id. ¶27 To the extent that they are relevant under the applicable standards, we have also considered the appellant’s follow -up arguments about whether the investigation would have occurred in the a bsence of his disclosures. PFR File, Tab 7 at 12 -19. Generally speaking, these arguments dispute some of the underlying allegations from the USACE complaint —the USACE complaint that precipitated the agency’s investigation. Id. For example, in response to USACE’s complaint that the appellant was blurring the line between his FWS work and personal mitigation banking work by conducting both in the same phone calls to USACE staff, IAF, Tab 11 at 116, the appellant suggests that he was 16 entitled to multiple breaks each day, during which he was free to attend to his mitigation banking or any other personal matter, PFR File, Tab 7 at 14 -15. In response to USACE’s complaint about the possible conflict of interest between his mitigation banking and FWS work, which explicitly cited three sets of regulatory provisions, see IAF, Tab 11 at 116 -17 (citing 5 C.F.R. §§-2635.401 -.403 (governing conflicting financial interests) , .501 -.503 (governing impartiality in performing official duties), .801 -.809 (governing outside activities) ), the appellant attempts to show that one set of those regulations did not apply under the circumstances, PFR File, Tab 7 at 16 -17 (citing 5 C.F.R. §§ 2635.401 , .402 (governing conflicting financial interests) ). We are not persuaded. Among other things, the administrative judge found that officials from multiple agencies had vali d concerns about the propriety of the appellant’s actions and were not prompting the investigation as a pretext for retaliation —a conclusion based largely on credibility. E.g., ID at 46. The appellant’s arguments do not warrant a different conclusion. See Haebe , 288 F.3d at 1301. The appellant is not entitled to corrective action for Personnel Actions 3 -5. ¶28 The only matter disputed on review for Personnel Actions 3 -5 is whether the agency met its burden of proving that it would have taken the same actions in the absence of the appellant’s whistleblowing. PFR File, Tab 7 at 19 -29. Once again, in analyzing the agency’s burden, the Board will c onsider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existen ce and strength of any motive to retaliate on the part of the agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers, but who are otherwise similarly situated. Carr, 185 F.3d at 1323; supra ¶ 12. 17 We modify the initial decision to clarify the applicable standards . ¶29 As a preliminary matter, we note that the administrative judge gave the parties proper notice of the burdens below, describing the Carr factors just as we have in both the jurisdictional order and a prehearing conference summary. IAF, Tab 3 at 6, Tab 94 at 2 n.3. However, she characterized the first Carr factor somewhat differently in the initial decision by referring to “whether the ag ency had legitimate reasons for the personnel action.” ID at 33. This is consistent with how the Board has described the first Carr factor, at times, when analyzing a personnel action that is not disciplinary. ID at 33; see, e.g ., Gonzales v. Department of the Navy , 101 M.S.P.R. 248 , ¶ 12 (2006) (explaining that the first Carr factor did not apply straightforwardly to the agency’s imposition of a shift change, which was a covered personnel action but was not disciplinary and did not require evidence of misconduct, so it was appropriate to consider the broader question of whether the agency had legitimate reasons for the shift chang e). The administrative judge later described the first Carr factor as one of “independent causation” for the personnel actions. E.g., ID at 46, 48, 50. Though not raised by either party on review, we modify the initial decision to clarify any resulting confusion. Despite the administrative judge’s different descriptions, the first Carr factor remains the strength of the agency’s evidence in support of its action. See Miller v. Department of Justice , 842 F.3d 1252 , 1257, 1259 (Fed. Cir. 2016) (acknowledging that “independent causation” is another way the agency’s overall burden of proof has been described and recognizing that the first Carr factor is not a question of “whether the agency has put forward some evidence purporting to show independent causation, but instead . . . whether such evidence is strong”). ¶30 We also recognize that while the administrative judge initially characterized the Carr factors as part of the agency’s burden, ID at 32 -33, her subsequent discussion of the second and third Carr factors suggested otherwise by finding that the appellant did not present any credible motive to retaliate on the part of pertinent agency offici als and did not identify any similarly situated employees . 18 ID at 54 -55. The appellant has argued that these findings reflect an improper shifting of the burden to him. PFR File, Tab 7 at 29. To the extent that the initial decision could be interpreted as such, we clarify that it was the agency’s burden regarding each of the Carr factors, not the appellant’s , just as the administrative judge previously explained . Supra ¶ 12; ID at 32 -33; IAF, Tab 3 at 6, Tab 94 at 2 n.3. The agency met its burde n. ¶31 Aside from the modifications explicitly identified below, we discern no basis for reaching a conclusion different than the administrative judge . T he agency met its burden of proving by clear and convincing evidence that it would have taken Personnel Actio ns 3-5—the decision to rescind his approval to engage in outside activity, the restriction on his communications with USACE and AHTD, and the reassignment of certain duties —in the absence of the appellant’s whistleblowing . For the first Carr factor, the a dministrative judge’s extensive findings of fact reflect strong evidence in support of Personnel Actions 3 -5, findings with which we agree . ID at 36-52. While we need not recount all of these findings, we will provide a brief summary. ¶32 Most relevant to Personnel Action 3 , the administrative judge’s findings detail ample evidence of the appellant conducting personal work during business hours on days in which he was working for FWS, evidence that included the appellant’s own admissions. E.g., ID at 36 -37. Even if we were to assume that he only did so during breaks, as the appellant asserts, the evidence shows that officials with the USACE, AHTD, and FHA all perceived his dual role as a conflict of interest, and they were routinely confused abo ut which role the appellant was representing during their interactions. E.g., ID at 36 -46. In fact, AHTD credited that conflict of interest for their rejection of the appellant’s mitigation banking bid on one particular project and denying permission eve n before the appellant bid on another. ID at 44. The administrative judge’s findings also detail how multiple FWS officials were involved in the approval of 19 the appellant’s outside activity request, but they did so with limited information and ultimately regretted the decision as the conflict posed by the appellant’s dual role became more apparent. ID at 46 -47. ¶33 Next, most relevant to Personnel Action 4 , some of the same officials from the USACE and AHTD provided detailed descriptions of the appellant’s behavior, which they generally characterized as accusatory, aggressive, and threatening. ID at 38 -43. And when given a temporary restriction on his contact with these entities to investigate the same, the appellant flouted the restriction. ID at 48 -50. Finally, most relevant to Personnel Action 5 , the administrative judge detailed how the FWS had actually reassigned certain duties in response to the appellant’s own accommodations request for personal health reasons. ID at 50 -52. ¶34 Turning to the second Carr factor, the administrati ve judge found little or no motive to retaliate on the part of relevant agency officials. ID at 52 -54. If anythin g, it appears that FWS official s found disclosures like the appellant’s to be both expected and appreciated of a n individual in his position, even if they did not agree with the manner in which the appellant conveyed some of his concerns. See, e.g ., ID at 15 -17, 52. The administrative judge also noted , inter alia, that the relevant agency officials gave the appell ant positive performance reviews during the same period, they supported his request for a detail assignment, and they attempted to modify his job duties to alleviate work -related stress. ID at 52. ¶35 On review, t he appellant suggests that the administrativ e judge should have considered whether FWS officials may have been motivated to retaliate based on his disclosures reflect ing poorly on them or their relations with the USACE, AHTD, or other outside ent ities. PFR File, Tab 7 at 28 . We agree that this is a relevant consideration and modify the initial decision accordingly . See Whitmore , 680 F.3d at 137 0 (recognizing that “[t] hose responsible for the agency’ s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as 20 managers and employees ”). However, the circumstances at hand are notably dissimilar to those in Whitmore , where the emplo yee’s disclosures were highly critical of his employing agency and high -level managers , many high -level managers were aware of and concerned about the disclosures, and there was a years -long pattern of personnel actions taken against the employee following the disclosures. Whitmore , 680 F.3d at 1371. In this case, the appellant’s disclosures implicated wrongdoing on the part of outside agencies or entities , not his employ er—FWS . While that could still create some motive to retaliate, especially if FWS officials perceived the appellant’s disclosures as damaging to interagency relationships, we are not aware of any evidence support ing a conclusion that this motive was significant . We discern no basis for concluding that the appellant’s protected disclosure s caused notable tension between FWS and the outside agencies implicated by his disclosures beyond that which is inherent, given their respective missions, e.g., FWS’s protection of the environment and AHTD’s construction of highways . ¶36 For the third and final Carr factor, the administrative judge found no evidence of other employees who were not whistleblowers but were otherwise similarly situated. ID at 54 -55. We modify the initial decision to recognize that, if anything, the absence of evidence concerning the third Carr factor “tends to cut slightly against the Government,” which the administrative judge failed to acknowledge. Miller , 842 F.3d at 1262. ¶37 Although the appellant presents several other arguments pertaining to Personnel Actions 3 -5, each is unavailing. The majority of his arguments amount to little more than disagreement with the administrative judge’s well -reasoned analysis of hearing testimony as it concerns both the strength of the agency’s evidence, e.g., PFR File, T ab 7 at 20 -21, and the motivations of relevant officials, e.g., id. at 21-25, which we will not disturb, see Haebe , 288 F.3d at 1301. For example, the appellant directs us to the transcript of a conversation he had with agency officials about whistleblowe r protections, which he apparently obtained 21 by secret recording. PFR File, Tab 7 at 23 -24 (referencing IAF, Tab 52 at 67, 70, 76, 79, 82); see ID at 7. According to the appellant, portions of this conversation provide direct evidence of the agency’s reta liatory intent and a deliberate cover -up. PFR File, Tab 7 at 24. Yet the administrative judge found otherwise, based on a review of the transcript, the context of what these officials said, and the credibility of witnesses who testified about the convers ation. ID at 53-54. We see no reason to reach a different conclusion. ¶38 While the record includes strong evidence of FWS officials being concerned with the manner in which the appellant interacted with outside entities and a conflict of interest, the app ellant has not presented any basis for concluding that they had a significant motive to retaliate for his disclosures, which s upported the agency’s mission. Separately, the appellant also asserts that the administrative judge ignored several pieces of evidence , such as evidence about his fall 2015 superior performance appraisal . E.g., PFR File, Tab 7 at 26 (citing IAF, Tab 11 at 34) . We have considered this evidence pursuant to our obligation under Whitmore , 680 F.3d at 1368 . However, the appellant h as not persuaded us that his performance appraisal covering the timeframe of October 1, 2014, through September 30, 2015, IAF, Tab 11 at 34, is relevant to the administrative judge’s analysis of the strength of the agency’s evidence concerning the personne l actions, including Personnel Action 4 (which occurred in March 2016), or h er analysis of the motive to retaliate. ¶39 We have considered each of the appellant’s arguments, but agree with the administrative judge’s conclusion. Weighing each of the Carr factors, and all relevant evidence, the agency met its burden of proving that it would have taken the same actions —Personnel Actions 3 -5—in the absence of the appellant’s whistleblowing. See ID at 55. The appellant’s procedural arguments are unavailing. ¶40 The appellant presents a few additional arguments pertaining to the administrative judge’s handling of the appeal. First, he argues that the 22 administrative judge erred in allowing the agency to substitute one requested witness for another, just days before th e scheduled hearing. PFR File, Tab 7 at 19-20. We disagree. ¶41 The agency initially requested, and the administrative judge approved, the agency’s current Ethics Counselor. IAF, Tab 50 at 9, Tab 94 at 4. A few days before the scheduled hearing, the agency submitted a motion indicating that it had located its former Ethics Counselor —the one who reviewed the appellant’s 2013 request to engage in the outside activity of mitigation banking —and wanted to call him instead. IAF, Tab 104 at 1 -2; see, e.g ., IAF, T ab 13 at 125 -26. The administrative judge granted the motion over the appellant’s objection, which was primarily based on the timing of the substitution. IAF, Tab 107 at 4. On review, the appellant describes the agency’s request as a “last minute, surpr ise change of witnesses” and describes the administrative judge’s decision on the matter as erroneous. PFR File, Tab 7 at 19 -20. Given the former Ethics Counselor’s unique insight into the 2013 decision to grant the appellant’s outside activity request, the appellant has not presented any basis for us to conclude that the decision was an abuse of discretion. See Tisdell v. Department of the Air Force , 94 M.S.P.R. 44 , ¶ 13 (2003) (recognizing that an administrative judge has wide discretion to control the proceedings, to receive relevant evidence, and to ensure that the record on significant issues is fully developed). ¶42 The appellant next asserts that the administrative judge prejudicially interfered with his cross -examination by preventing him from using prior deposition testimony to impeach witnesses. PFR File, Tab 7 at 31. Yet, the appellant has failed to identify th e witnesses, testimony, and impeachment evidence to which he is referring, so we are not persuaded by this conclusory argument. See generally Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 8 (2000) (explaining that an administrative judge has wide discretion to control the proceedings, including authority to exclude testimony he believes would be irrelevant or immaterial). We ar e also unpersuaded by the appellant’s final 23 argument —that the administrative judge did not similarly interfere with the agency’s presentation of its case, reflecting a bias against the appellant and for the agency. PFR File, Tab 7 at 31; see Bieber v. Dep artment of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (stating that an administrative judge’s conduct during the course of a Board procee ding warrants a new adjudication only if her comments or actions evidence “a deep -seated favoritism or antagonism that would make fair judgment impossible”) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)); Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980) (observin g that, in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators). NOTICE OF APPEAL RIGHTS8 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). A lthough 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. Failur e to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 24 Please 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 fi le a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 25 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after you r representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of an y requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims 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: 26 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All 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. 27 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the 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	WINE_MITCH_DA_1221_16_0513_W_2_FINAL_ORDER_2001833.pdf	2023-02-10	null	DA-1221	NP
3,572	https://www.mspb.gov/decisions/nonprecedential/SEARCY_ERIC_LANE_AT_0752_17_0083_I_1_FINAL_ORDER_2001854.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIC LANE SEARCY, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER AT-0752 -17-0083 -I-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Carl Jones , Warner Robins, Georgia, for the appellant. Frank M. Wood , Esquire, Robins Air Force Base, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Me mber FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative ju dges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge ’s rulings during either the cour se of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite th e petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 (5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The agency removed the appellant from his position of Sheet Metal Mechanic, effective October 21, 2016, for breaching a last chance agreement (LCA) by failing to observe safety procedures and engaging in careless workmanship . Initial Appeal File (IAF), Tab 4 at 33 -34. Under the terms of the LCA , the appellant agreed to refrain from any misconduct for a 2 -year perio d beginning on December 15, 2014 . Id. at 15 -16, 31. The LCA provided that the agency could summarily remove the appe llant during that 2 -year period if he committed any misconduct, including, but not limited to, “failing to comply with any written rules or Air Force Instructions.” Id. at 16. The terms of the LCA also specified that the appellant voluntarily agreed and understood that he waived his right to appeal any such removal. Id. at 16 -17. ¶3 The appellant’s removal stemmed from an incident on Septe mber 15, 2016, in which he violated agency instructions by backing up a 30 -foot trailer into a building without a spotter . Id. at 33. During the incident , the appellant hit and damaged a bay door. Id. In the removal decision notice, t he agency specified 3 that the appellant violated Air Force Instruction (AFI) 91-203, Air Force Consolidated Occupational Safety Instruction , paragraph 32.4.3. Id. at 19 -20, 33. That section states, in relevant part, “A spotter shall be posted when moving large equi pment and vehicles backwards or in close quarters.” Id. The agency also specified that the appellant’s conduct violated AFI 24-301, Air Force Materiel Command Supplement, Tran sportation, Vehicle Operations , paragraph 2.4.13. Id. at 21 -22, 33. That paragraph also requires the use of a spotter under certain circumstances when backing up a vehicle. Id. The agency removed the appellant for violating the LCA by engaging in the specified misconduct. Id. at 33 -34. ¶4 The appellant filed a timely ap peal with the Board challenging his removal . IAF, Tab 1. The agency filed a motion to dismiss the appeal for lack of jurisdiction , arguing that the appellant waived his right to appeal the removal under the terms of LCA . IAF, Tab 4 at 6-8. The administ rative jud ge issued an order specifically informing the appellant of what he needed to establish for the Board to have jurisdiction over his appeal. IAF, Tab 5. In response, t he appellant argued that the LCA no longer applied because the agency changed h is job duties when it transferred him to a different position than the one he occupied when he signed the LCA . IAF, Tab 6 at 5. The appellant also argued that the LCA was no longer in effect because the action for which he was removed occurred more than 1 year after he signed the LCA . Id. The agency responded by arguing that the appellant was removed pursuant to a valid LCA , the terms of which included his agreement to waive his right to appeal his removal for committing any misconduct during the 2 -year period that the LCA was in effect . IAF, Tab 7 at 4-5. ¶5 The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction based on her finding s that the appellant’s waiver of his appeal rights in the LCA was va lid and that his misconduct occurred during the 2 -year period that the waiver was in effect. IAF, Tab 8, I nitial Decision (ID) at 3-5. The administrative judge also found that the LCA applied regardless of the 4 appellant’s position at the agency because the LCA did not prohibit the agency from reassigning him to other duties or positions. ID at 4. She dismissed the appeal without holding the hearing requested by the appellant based on her finding that there was no factual dispute relevant to the jurisdi ctional issue . ID at 1; IAF, Tab 1 at 2 . ¶6 The appellant has filed a petition for re view challenging the administrative judge’s decision to dismiss his appeal for lack of jurisdiction . Petition for Review (PFR) File, Tab 1. The agency has responded in op position to his petition. PFR File, Tab 2. DISCUSSION OF ARGUME NTS ON REVIEW ¶7 The appellant argues for the first time on review that he did not breach the LCA .2 PFR File, Tab 1 at 5-6. We disagree, and we explain below why we will consider this argument , even though it was not raised on appeal. ¶8 The appellant bears the burden of proving that his appeal is within the Board’s jurisdiction. Bruhn v. Department of Agriculture , 124 M.S.P.R. 1 , ¶ 9 (2016); 5 C.F.R. § 1201.56 (b)(2)(i)(A). The Board lacks jurisdiction over an action taken pursuant to an LCA in which an appellant waives his right to appeal to the Board. Bruhn , 124 M.S.P.R. 1 , ¶ 9. An appellant may establish that a waiv er of appeal rights in a LCA should not be enforced by showing, as relevant here, that he complied with the LCA . Id. The appellant argues that only willful misconduct could violate the LCA , and he contends that his misconduct was not willful because he had a spotter , and the spotter told him it was clear but then walked away without his knowledge . PFR File, Tab 1 at 5 -6. ¶9 The Board generally will not consider arguments raised for the first time in a petition for review. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 2 On review, t he appellant does not dispute the administrative judge’s finding s that the LCA was valid and in effect when the agency removed him. ID at 4-5; PFR File, Tab 1 at 5. We decline to disturb these findings. 5 (1980). However, there is an exception for arguments regarding the Board’s jurisdiction because this issue may be raised at any time during the Board proceedings. Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016). The plain language of the LCA provided that the agency could “summarily remove[]” the appellant for “failing to comply with any written rules or Air Force Instructions .” IAF, Tab 4 at 15-16, 31. The terms of the LCA did not specify that the appellant’s misco nduct had to be willful to warrant his removal by the agency , and breach can be established by proving material noncompliance with the terms of the LCA “regardless of . . . motive. ” Id. at 15 -16; see Link v. Department of the Treasury , 51 F.3d 1577 , 1582 (Fed. Cir. 1995). ¶10 Because the appellant agreed to waive his right of appeal in the LCA , and he has failed to allege that the w aiver is unenforceable under the applicable criteria , we find that the administrative judge properly dismissed his removal appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 filing time limits and requir ements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. I f you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Boar d order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place , N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants ,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www. mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept repres entation 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, i n whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals fo r the Federal Circuit), within 30 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 c ourt 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 (E EOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC n o later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 8 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Stree t, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for revi ew “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into la w by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals o f competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	SEARCY_ERIC_LANE_AT_0752_17_0083_I_1_FINAL_ORDER_2001854.pdf	2023-02-10	null	AT-0752	NP
3,573	https://www.mspb.gov/decisions/nonprecedential/TALTON_JAMES_R_AT_0707_15_0094_J_1_FINAL_ORDER_2003250.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES R. TALTON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0707 -15-0094- J-1 DATE: February 10, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 James R. Talton, Montgomery, Alabama, pro se. Gia M. Chemsian, Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the administrative judge’s decision, which sustained his removal from the Senior Executive Service (SES) in the Department of Veterans Affairs (DVA or agency). Generally, we grant petitions such as this one only in the following circumstances: the decision of the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 administrative judge contains erroneous findings of material fact; the decision of the administrative judge 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 his or her 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 Regulat ions, section 1201.115 (5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DEEM the appellant’s petition to be timely filed, DENY the petition , and AFFIRM the decision of the administrative judge . BACKGROUND ¶2 Section 707 of the Veterans Access, Choice, and Accountability Act of 2014 (2014 Act) , Pub. L. No. 113 -146, 128 Stat. 1754, set forth new procedures for the removal or transfer of DVA SES employees . Section 707, 128 Stat. at 1798- 1801. Under these new procedures, an SES employee could be removed or, in some cases, transferred to the General Service, without regard to the procedural rights provided to SES employees in 5 U.S.C. § 7543 (b). 2014 Act § 707. The 2014 Act also provided that, if the SES employee challenged the action before the Board, the administrative judge’s decision would be final and not subject to any further right of appeal . Id. ¶3 On October 3, 2014, Deputy Secretary Sloan Gibson proposed the appellant’s removal from his position as the Director of the Central Alabama Veterans Healthcare System (CAVHCS), an SES position, pursuant to the procedures set forth in section 707 of the 201 4 Act. Init ial Appeal File (IAF), Tab 1 at 6-8. The proposal charged the appellant with two specifications of 3 neglect of duty and two specifications of failing to provide appropriate information to his supervisor. Id. at 6- 7. Specifically, in the first charge, neglect of duty, the agency asserted that the appellant failed to exercise proper oversight to ensure timely and appropriate action was taken against the following two employees: (1) an employee who transported a veteran to a place known for illegal use and distribution of drugs and who engaged in inappropriate financial transactions with patients; and (2) another employee who was involved in an accident while misusing a Government vehicle and misled police about the circumstances of his accident. Id. at 6. In the second charge, the agency asserted that the appellant failed to provide appropriate information to his supervisor because (1) he did not notify his supervisor about the employee that had transported the veteran to the place known for illegal drug use, and (2) on August 20, 2014, he issued a brief stating that the allegation against the employee was unsubstantiated, while previously reporting to agency investigators that he believed that the case against the employee was “ironclad.” Id. at 6-7. After considering the appellant’s written reply, the Deputy Secretary sustained the charges and their underlying specifications and imposed the removal, effective October 24, 2014. Id. at 9- 11. ¶4 The appellant filed the instant appeal challenging his removal and did not request a hearing. IAF, Tab 1. On November 19, 2014, the administrative judge issued a decision sustaining the agency’s action. IAF, Tab 31, Administrative Judge Decision (AJ D). He sustained all of the charges and underlying specifications and found that the appellant did not prove his affirmative defenses. AJD at 10-26. The administrative judge also found, based upon the Board’s limited ability to review the penalty determination, that the penalty was not unreasonable. AJD at 26-32. ¶5 Five days later, o n November 24, 2014, Ms. Sharon M. Helman also was removed pursuant to the 2014 Act and, on December 22, 2014, an administrative judge issued a decision sustaining her removal. Helman v. Department of 4 Veterans Affairs, MSPB Doc ket No. DE-0707- 15-0091 -J-1, Decision (Dec. 22, 2014). On January 22, 2015, Ms. Helman filed a motion for an extension of time to file a petition for review, but the Clerk of the Board issued a letter on January 26, 2015, informing her that she did not have the right to file her petition. Helman v. Department of Veterans Affairs, MSPB Docket No. DE- 0707 -15-0091- J-1, Initial Appeal File, Tabs 77- 79. ¶6 Ms. Helman then filed a petition for review with the U.S. Court of Appeals for the Federal Circuit, which was docketed on February 23, 2015. Helman v. Department of Veterans Affairs, MSPB Docket No. DE -0707 -15-0091- L-1, Appeal File, Tab 1. On May 9, 2017, the Federal Circuit issued its decision in Helman v. Department of Veterans Affairs, 856 F.3d 920 (Fed. Cir. 2017). The court concluded that the provisions of the 2014 Act that prohibited further review of the decisions of administrative judges vio lated the Appointments Clause by improperly delegating the authority to issue a final decision to the administrative judges, who, it was undisputed, were hired as employees rather than officers of the United States . Id. at 929- 30 (citing U.S. Const. art. 2, § 2, cl. 2). The court stated that rendering such decisions was a significant duty that should only be performed by a properly appointed officer of the United States . Id. Nevertheless, the court found that the remaining provisions of the statute were severable from the unconstitutional provisions, and thus, the court left these provisions unchanged. Id. at 935- 36. The court remanded the matter to the Board for review of the administrative judge’s decision, consistent with the remaining provisions of the 2014 Act. Id. at 938. ¶7 On June 8, 2017, 30 days after the Federal Circuit issued its decision in Helman, the appellant filed a petition for review of the administrative judge’s decision. Petition for Review (PFR) File, Tab 1. Subsequently, on June 23, 2017, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (2017 Act), Pub. L. No. 115 -41, 131 Stat. 862, was enacted . Section 201 of the 2017 Act amended the 2014 Act and established a 5 new grievance procedure that removed the Board’s jurisdiction. Section 201, 131 Stat. at 868- 69 (codified at 38 U.S. C. § 713). Under the new procedures, an SES employee could instead obtain only limited judicial review of the agency’s final decision. Id . ¶8 On June 26, 2017, the appellant filed a motion to waive the time limit for filing his petition. PFR File, Tab 3. The agency responded on July 7, 2017. PFR File, Tab 4. The appellant replied on July 25, 2017. PFR File, Tab 7. DISCUSSION OF ARGUME NTS ON REVIEW We deem the appellant to have filed a timely petition for review. ¶9 Ordinarily, a petition for review may only be filed within 35 days after the date of issuance of the administrative judge’s decision or, if the appellant shows that the decision was received more than 5 days after the date of issuance, within 30 days after the date he received the decision. 5 C.F.R. § 1201.114 (e). However, considering the unique circumstances of this case, we grant the appellant’s motion to waive the time limit and deem that he has filed a timely petition for review. ¶10 According to the agency, we should not consider the appellant’s petition for review because, unlike Ms. Helman, he failed to preserve his rights by filing an additional pleading with the Board or appeali ng to the Federal Circuit. PFR File, Tab 4 at 11- 12. The agency also challenges the timeliness of the petition because approximately 2 1/2 years passed between the administrative judge’s decision and the filing date. Id. at 10- 11. However, a s the statute in effect when the decision was issued did not provide for Board review or a court appeal, the appellant would have had no reason to preserve his rights through either of these methods. Therefore, we do not fault him in this respect. Further, although we agree that an extended period has elapsed between the issuance of the decision and the appellant’s petition, the appellant acted diligently by filing his petition within 30 days after the Federal Circuit issued Helman and indicated to him that he may 6 have the right to file a petition for review. Because the appellant would have had no reason to know that he could file a petition and he acted diligently when he was informed that he may have such a right, we deem his petition to have been timely filed. The provisions of the 2017 Act that remove Board jurisdiction are not retroactive. ¶11 The agency asserts that the Board no longer has the authority to review the administrative judge’s decision because the 2017 Act removed that authority. PFR File, Tab 4 at 12. Specifically , the agency argues that the Board should give retroactive effect to the provisions of the 2017 Act that removed the Board’s jurisdiction over appeals of adverse actions against DVA SES employees and transferred jurisdiction to a new internal grievance process with appeal rights directly to Federal court. Id. (citing 38 U.S.C. § 713 ). We disagree. ¶12 As the U.S. Supreme Court has stated, “[ r]etroactivity is not favored in the law” and, therefore, “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.” Bowen v. Georgetown University Hospital, 488 U.S. 204 , 208 (1988); see Landgraf v. USI Film Products, 511 U.S. 244 , 265 (1994); see also Hicks v. Merit Systems Protection Board , 819 F.3d 1318 , 1321 (Fed. Cir. 2016). Accordingly, a statute or administrative rule will not be construed as retroactive unless there is clear evidence that Congress intended as such. Bowen, 488 U.S. at 208; see Landgraf, 511 U.S. at 265; see also Hicks , 819 F.3d at 1321. ¶13 The Board will apply the analytical approach set forth in Landgraf in determining whether a new statute or portion of a statute should be given retroactive effect. King v. Department of the Air Force, 119 M.S.P.R. 663 , ¶ 8 (2013) (citing Landgraf , 511 U.S. at 280).2 Under Landgraf, when a case 2 The Federal Circuit adopted a three -part test to examine the issue of whether a change in the law would have an impermissible effect if applied retroactively under Landgraf . See Princess Cruises , Inc. v. United States , 397 F.3d 1358 , 1362 -63 (Fed. Cir. 2005). Under that test, the court will consider the following factors: (1) “the natu re and extent 7 implicates a Federal statute enacted after the events at issue, we must first determine whether C ongress expressly prescribed in the statute that the provision at issue should be applied retroactively. 511 U.S. at 280 . If the statute expressly states that the provision is retroactive, then our inquiry ends there. Id. If the statute does not expressly stat e that the provision is retroactive, then we must determine whether the statute ’s retroactive application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id . If so, the statute does not govern retroactively, absent clear congressional intent indicating otherwise. Id. ¶14 We find that Congress did not expressly prescribe that the provision s at issue in the 2017 Act would be retroactive. See Sayers v. Department of Veterans Affairs, 954 F.3d 1370 , 1380 (Fed. Cir. 2020) (finding that the VA Accountability Act “lacks an unambiguous directive or express command that the statute is to be applied retroactively” (quotation marks and citations omitted)). Congress has the ability to clearly express its intent for a statute to apply retroactively and has done so concerning other statutes. See, e.g., 38 U.S.C. § 4324 (c) (providing that the Board’s jurisdiction to hear appeals under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) exists “without regar d to whether the complaint accrued before, on, or after October 13, 1994”); Lapuh v. Merit Systems Protection Board, 284 F.3d 1277 , 1281- 82 (Fed. Cir. 2002) (observing that Congress expressly provided for the Board’s retroactive jurisdiction over claims brought under USERRA, but did not do so for veterans’ preference claims under the Veterans Employment Opportu nities Act of 1998 of the change of the law”; (2) “the degree of connection between the operation of the new rule and a relevant past event”; and (3) “familiar considerations of fair notice, reasonable reliance, and settled expectations .” Id. Because we find that the Landgraf holding directly controls in this appeal, we do not apply the Princess Cruises test . However, even if we did, we would still find that the relevant portion of the 2017 Act is not retroactive. See King, 119 M.S.P.R. 663 , ¶ 17 n.3. 8 (VEOA)). In this case, however, Congress has not specifically provided for an effective date of the provisions at issue. Instead, only two provisions of the 2017 Act— those regarding recoup ing awards, bonuses, and relocation expenses — specify an effective date, stating that they will apply to payments made on, or after, the date of enactment. Sections 204(c), 205(c), 131 Stat. at 875- 77; Sayers , 954 F.3d at 1380. ¶15 When Congress has provided for a specific effective date for some provisions of a statute and not for others, it is assumed that it intended the statute to apply only to actions that occurred after the date of enactment. See Lindh v. Murphy, 521 U.S. 320 , 327- 30 (1997) (holding that, if legislation includes a provision that expressly applies to cases pending on the date of enactment and another provision that does not, the statute “indicat[es] implicitly” that the latter applies only to cases filed after the date of enactment); Ad Hoc Shrimp Trade Action Committee v. United States, 802 F.3d 1339 , 1349- 51 (Fed. Cir. 2015) (holding that section 502 of the Trade Preferences Extension Act of 2015, Pub. L. No. 114-27, 129 Stat. 362, 383- 84, did not apply retroactively when Congress expressly provided that other provisions of the Act had retroactive effect). Thus, because Congress has provided for a specific effective date for two provisions but has not otherwise specified an effective date, the 2017 Act does not expressly provide that the provisions at issue are retroactive. ¶16 Having determined that the 2017 Act does not expressly state that it is retroactive, we must apply the second part of the Landgraf test to determine retroactivity. See Sayers , 954 F.3d at 1380- 82 (applying Landgraf to examine whether section 202 of the VA Accountability Act had an impermissible retroactive effect because Congress did not express any intent as to whether the Act applied to pre- enactment conduct); Wilson v. Department of Veterans Affairs, 9 2022 MSPB 7, ¶ 27.3 We find that applying the 2017 Act would impair the review rights that the appellant was afforded after the Federal Circuit’s decision in Helman and thus it cannot be applied retroactively. The court found that the portions of the 2014 Act that provided for the finality of the administrative judge’s decision were unconstitutional. Helman, 856 F.3d at 929- 30. At that time, the appellant’s right to Board review of that decision was restored. He then filed a petition for review on June 8, 2017. PFR File, Tab 1. After the appellant filed his petition, the 2017 Act revised 38 U.S.C. § 713 to provide that removal decisions of SES employees are on ly reviewable through an internal grievance process and then through a Federal court appeal, thus excluding Board jurisdiction. 4 2017 Act § 201. Accordingly, if we were to apply that provision retroactively, it would improperly re voke the appellant’s previously granted right to seek Board review of the agency’s action. See Upshaw v. Consumer Product Safety Commission , 111 M.S.P.R. 236 , ¶ 10 (2009) (finding that new suitability regulations issued by the Office of Personnel Management could not be applied retroactively to exclude Board jurisdiction), modified on other grounds by Scott v. 3 In Sayers , the agency removed the appellant pursuant to section 202 of the VA Accountability Act, codifi ed as amended at 38 U.S.C. § 714 . Sayers , 954 F.3d at 1372. Section 202 authorizes the agency to “remove, demote, or suspend a covered individual ” for inadequate performance or misconduct using a n expedited process. 131 Stat. at 869- 72; Wilson , 2022 MSPB 7, ¶¶ 11, 28. Our reviewing court held that section 202 had an impermissible retroactive effect because its lowered substantial evidence standard of proof and elimination of the Board’s authorit y to mitigate the penalty d etrimentally affected the appellant ’s property right to continued employment and “substantive rights to relief from improper removal.” Sayers , 954 F.3d at 1372 n.1, 1374, 1380‑ 81; Wilson , 2022 MSPB 7, ¶¶ 27-28. In so finding, t he court did not address whether section 201 had an impermissible retroactive effect, and thus, we consider it here. 4 It is also unclear what new duties the 2017 Act would require of the appellant or the agency if he would have pursued his challenge to his removal. Under the new statute, the appellant would have been entitled to file a grievance and then seek court review, yet he has already filed a Board appeal. 38 U.S.C. § 713(a)(2)(C); IAF, Tab 1. The agency has not explained how i t would have adjudicated this appeal, considering the grievance rights provided for in the 2017 Act . Considering this confusion, it is also unclear whether applying the new statute would increase the agency’s liability. 10 Office of Personnel Management , 116 M.S.P.R. 356 (2011). Thus , we conclude that the portion of the 2017 Act that provides for a new grievance process and direct court review is not retroactive.5 See Lapuh, 284 F.3d at 1280 -82 (finding that 5 U.S.C. § 3330a (d)(1) did not retroactively provide for the Board’s jurisdiction over allegations of a denial of veterans’ preference that arose prior to the VEOA’s enactment). The appellant has provided no basis for granting his petition for review, and thus we sustain the removal and affirm the administrative judge’s decision.6 The administrative judge properly sustained the charges. ¶17 The appellant challenges the administrative judge’s decision to sustain charge 1 , specification 1 , neglect of duty, stating that he lawfully decided there was insufficient circumstantial evidence to prove the allegations against the employee who drove the veteran to a place of illegal drug use. PFR File, Tab 1, at 1- 2. He states that the agency never provided him with training or specific criteria for taking disciplinary decisions and that his decision was based upon a judgment call. Id . at 2- 3. He also argues that the determination by the agency’s detective and hospital police— that the employee’s actions did not justify criminal charges —supported his decision not to impose discipline. Id. at 2. ¶18 Applying the factors set forth in Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 87 (1981), for assessing hearsay evidence, the administrative 5 Nothing in the 2017 Act or elsewhere suggests that it constituted a clarification of an existing law. Cf. Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 10-26 (2013). 6 The appellant has attached new information in the form of an article about a June 19, 2015 meeting about CAVHCS. PFR File, Tab 1 at 18 -19. 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 below despite due diligence and the eviden ce contained therein is of sufficient weight to warrant an outcome different from the administrative judge’s 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). While this article is new, it is not relevant to our determining whether to sustain the appellant’s removal. Thus, we have not considered it. 11 judge found that the appellant either was aware of the full details of the investigation and failed to take appropriate action or, under the circumst ances, should have known that these instances warranted his immediate and continued attention. AJD at 15. He considered that the appellant was a high- level employee , as he was a member of the SES and the Director of CAVHCS, and determined that a person of ordinary prudence in the same situation and with equal experience to that of the appellant would have timely and appropriately taken administrative action against the employee. Id. (citing Thomas v. Department of Transportation, 110 M.S.P.R. 176 , ¶ 9 (2008)). He concluded that the agency proved the appellant failed to exercise proper oversight to ensure that the appropriate action wa s timely taken against the employee. AJD at 15- 16. ¶19 The appellant’s reliance on the absence of criminal prosecution to justify his decision is misplaced because, although the Office of Inspector General and the police did not recommend criminal prosecuti on, they did recommend administrative action. IAF, Tab 26 at 5- 6. His assertions that he made a judgment call, lacked training to make the proper decision, or otherwise found that discipline was not warranted because the matter was not being criminally investigated, do not provide a reason for disturbing the administrative judge’s findings that t he appellant did not exercise proper oversight in this case. 7 PFR File, Tab 1 at 1-3; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the administrative judge’ s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility ). ¶20 The appellant claims that we should not sustain charge 2 because specification 2 of the charge is unsupported. PFR File, Tab 1 at 3- 4. He challenges the administrative judge’s decision to sustain specification 2, which 7 The appellant challenges the administrative judge’s finding sust aining specification 2 of charge 1 but has not provided a basis for disturbing this finding. PFR File, Tab 1 at 4. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997). 12 alleges that he failed to provide appropriate information to his supervisor when he initially stated that the charge against an employee was “ironclad,” and then later stated that the charge against the employee was unsubstantiated. Id. at 3. He argues that the report from the Administrative Investigation Board (AIB), which was used to support his removal, misconstrued his testimony as he did not actually include the “crack house” allegation in descr ibing the employee’s misconduct. Id. at 3, 12; IAF, Tab 6 at 10, 24, Tab 14 at 111- 12, 138. He also disputes the administrative judge’s finding as to when the employee was reassigned to a position in which he was not responsible for patient care. PFR File, Tab 1 at 4; AJD at 20 n. 13. We fail to see how these arguments provide any basis for disturbing the charge. See Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357 , 359 (1987) (finding no reason to disturb the administrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). Additionally, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge . Miller v. U.S. Postal Service, 117 M.S.P.R. 557 , ¶ 17 (2012). Thus, even if we only sustained specification 1, we would still sustain the charge. Harmful Procedural Error ¶21 The appellant argues that the agency committed harmful procedural error because the AIB was of poor qual ity. PFR File, Tab 1 at 4 -6. He also claims harmful error in that lack of agency resources, such as proper budget, staffing of leadership positions, and proper coaching, prevented him from accomplishing his duties. Id. at 8- 10. Additionally, he asserts that the agency violated the fif th Merit Principle regarding using the workforce efficiently and effectively by not providing him the proper training and resources to accomplish his job while providing additional staffing and funding after he left. Id . at 6- 8. Further, he challenges the short time period between the proposal and the decision to remove him because he was unable to obtain records related to the lack of recruitment and hiring of senior leaders, which would demonstrate that the actions at issue were 13 not his fault, and because he could not retain an attorney in such a short amount of time. Id . at 9- 10. ¶22 The Board will not sustain an agency’s action if the appellant shows harmful error in the agency’s application of its procedures in arriving at its decision. 5 U.S.C. § 7701 (c)(2)(a); Lentz v. Merit Systems Protection Board, 876 F.3d 1380 , 1385 (Fed. Cir. 2017); Forte v. Department of the Navy , 123 M.S.P.R. 124 , ¶ 9 (2016); 5 C.F.R. § 1201.56 (c)(1). The appellant may establish harmful error by proving, by preponderant evidence, that the agency committed an error in applying its procedures “ that is 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. ” 5 C.F.R. §§ 1201.4(r), 1201.56 (b)(2)(i)(C), (c)(1); see Lentz , 876 F.3d at 1385; Forte, 123 M.S.P.R. 124 , ¶ 9. Even assuming that the appellant has pointed to an error by the agency, he has not described how any such error could have altered the agency’s decision to remove him. ¶23 The appellant further asserts that the agency cannot charge him with neglect of duty because it was not determined that his decision regarding whether to impose discipline was inappropriate and, if this matter had been considered as a performance- based action, the agency did not demonstrate properly that his performance was deficient. PFR File, Tab 1 at 14- 15. The 2014 Act provides that the Secretary may remove or demote an employee for both performance and miscond uct. Section 707(a) (codified at 38 U.S.C. § 713 (a)(2014)). Thus, to the extent that the appellant is asserting that he was entitled to the procedures set forth in chapter 43 of t itle 5, we disagree. 8 Further, although the appellant argues that the agency never determined that his decision was inappropriate, as previously discussed, we find that the agency proved that he should have known that the events warranted immediate and continued attention and, therefore, his 8 Even if the agency had removed the appellant pursuant to title 5, an agency may rely on either chapter 75 or chapter 43 or both to take a performance -based action. Lovshin v. Department of the Navy , 767 F.2d 826 , 843 (Fed. Cir. 1985). 14 failure to impose discipline was indeed inappropriate. Accordingly, we find that the appellant has not proven harmful procedural error. Due Process ¶24 The appellant next argues that the agency violated his right to due process when the deciding official made a decision regarding his case before considering his response. PFR File, Tab 1 at 12- 13. Prior notice and an opportunity to respond to an appealable agency action are fundamental due process requirements for a tenured public employee. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 , 546 (1985). It is not a violation of the appellant’s due process rights when the role of the proposing and deciding official is performed by the same person because “[the] law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Department of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985); see Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). Additionally, a deciding official’s familiarity with the facts of a case and even an expressed predisposition contrary to the appellant’s interests do not constitute a due process violation or harmful error. Martinez, 119 M.S.P.R. 37, ¶ 11. ¶25 Here, the Deputy Secretary proposed the appellant’s removal and provided him the opportunity to respond to the proposal. IAF, Tab 1 at 6- 8. The appellant provided a written response, which the Deputy Secretary considered prior to imposing the removal. Id. at 9 -11. The appellant’s bare assertions challenging the Deputy Secretary’s impartiality do not support a finding that the agency violated his right to due proces s. See Holton v. Department of the Navy , 123 M.S.P.R. 688, ¶ 31 (2016) (finding that the appellant’s argument that it was unfair to use the individual who had granted permission to drug test him as the deciding official did not support a finding of a due process violation as the appellant did not substantiate his claim that the official was unwilling to change his mind or fully consider the evidence). 15 Penalty Determination ¶26 The appellant requests that we not sustain the removal.9 PFR File, Tab 1 at 15-16. He points to his accomplishments, including achieving the hospital’s first official passing performance rating in many years, reducing the time to complete Compensation and Pension examinations from 73 days to 26 days when the requirement is 30 days, achieving performance in the top 10% of agency hospitals, and establishing a collaboration with the Department of Defense. Id . Further, he identifies a previously life- threatening illness that affected his performance. Id . at 10. ¶27 The Board generally analyzes the agency’s penalty selection under the statutory “efficiency of the service” standard with the agency bearing the burden to prove the reasonableness of its penalty selection. 5 U.S.C. §§ 7513 (a), 7701(b)(3), (c)(1)(B); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 307- 08 (1981); 5 C.F.R. § 1201.56 (b)(1)(ii). However, in this matter, we apply the standard for penalty analysis set forth in the 2014 Act as this standard was left undisturbed by Helman, 856 F.3d at 936. Our regulations provide that, under the 2014 Act, proof of misconduct or poor performance creates a presumption that the Secretary’s decision to remove or transfer the employee was warranted. 5 C.F.R. § 1210.18 (a), (d). The appellant may rebut this presumption only by establishing that the penalty was unreasonable under the circumstances of the case, in which case the action will be reversed. 5 C.F.R. § 1210.18 (d). ¶28 The administrative judge found that the appellant’s failure to monitor the cases of the two employees and ensure that appropriate action was taken constituted a dereliction of duty and damaged the very core of the agency’s mission to take care of our nation’s veterans, which included ensuring their 9 The appellant asserts that, at most, charge 1, specification 2, should be sustained and that this specification alone does not warrant removal. PFR File, Tab 1 at 4. However, because we have sustained all of the charges and specifications, his argument is not persuasive. 16 safety. AJD at 30. He considered that there may have been failures throughout the process after the investigations, highlighting the difficulty of the appellant’s position, but he found that, as an SES employee, the appellant should have taken a leadership role in ensuring that the situation was handled properly. Id . The administrative judge also stated that the appellant failed to exercise the responsibility and trust placed in him as a Medical Director and as a member of the SES and that his position as an SES employee rendered his misconduct even more serious. AJD at 30- 31. Further, the administrative judge noted that the appellant’s failure to notify his leadership about the situations only worsened the problem. AJD at 31. He also found that the appellant’s proffered comparator was not similarly situ ated and that, if he were, the agency’s failure to discipline that employee would not render the p enalty unreasonable. AJD at 31- 32. ¶29 On the basis of the above, the administrative judge concluded that the Deputy Secretary convincingly explained why he determined that removal was the most appropriate penalty. AJD at 32. The appellant’s arguments regarding the lack of severity of the proven charges, his accomplishments, and his illness do not provide a reason for disturbing the administrative judge’s conclusion that he failed to establish that the penalty was unreasonable. 10 10 The appellant otherwise challenges the administrative judge’s decision on the basis of the following: the administrative judge misjudged his testimony and should not have relied on the AIB’s decision; the administrative judge cited untrue and unsworn statements by quoting him as mentioning that the employee took the veteran to a “crack house” when he did not mention either this or that the employee never took the veteran back to the facility; the administrative judge should not have credited the testimony of the Network Director and the Deputy Secretary that he had the ability to change condit ions within the facility; and he disagrees with the Network Director’s statement that he failed to properly prepare facility budgets. PFR File, Tab 1 at 10 -14. These arguments constitute mere disagreement with the administrative judge’s decision and do not provide a reason for disturbing it. See Broughton, 33 M.S.P.R. at 359. 17 NOTICE OF APPEAL RIG HTS11 The decision of the administrative judge, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which ca ses fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable tim e limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular 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). 11 Since the issuance of the administrative judge’s decision in this matter, the Board may have updated the notice 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. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 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 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 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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 review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction. 12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 12 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2 017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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/Court Websites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TALTON_JAMES_R_AT_0707_15_0094_J_1_FINAL_ORDER_2003250.pdf	2023-02-10	null	AT-0707	NP
3,574	https://www.mspb.gov/decisions/nonprecedential/MCCLURE_NATHANIEL_R_DE_4324_16_0220_I_1_FINAL_ORDER_2001160.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NATHANIEL R. MCCLURE , Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S DE-4324 -16-0220 -I-1 DE-1221 -16-0219 -W-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant. Michael E. Anfang , Esquire, Kansas City, Missouri, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his joined Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and whistleblower reprisal individual right of action (IRA) appeals. 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 peti tions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the c ase; 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 peti tion for review . Except as expressly MODIFIED by this Final Order to supplement the administrative judge’s analysis of the whistleblower reprisal claim, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant, a veteran, had been employed by the agency at the Wichita, Kansas, Veterans Affairs Medical Center (Wichita VAMC) since October 5, 2014, when , on March 22, 2015, the agency converted him from a temporary appointment to a career -conditional appointment, subject to the completion of a 1-year probati onary period . Initial Appeal File (IAF), Tab 12 at 17, 23-24.2 From March 24-26, 2015, the Wichita VAMC held a 3-day meeting , which the appellant attended . IAF, Tab 1 at 12, Tab 12 at 7. Duri ng the meeting , the appellant allegedly threw his pen down in frustration, refused to sit at a table with his group, and stated that the lead facilitator “better not make [him] go full soldier on her.” IAF, Tab 16 at 11-12. He also allegedly stated that he would like to “b low [the facilitator’s] car about three feet off the ground.” Id. 2 All references to “IAF” are to the file in McClure v. Department of Veterans Affairs , MSPB Docket No. DE-4324 -16-0220 -I-1. 3 Witnesses to the alleged conduct reported the incidents to agency officials, and, on April 17, 2015, the agency terminated the appellant during his probationary period. Id.; IAF, Tab 12 a t 25-28; Tab 22, Hearing Compact Disc (HCD) (testimony of T.H., L.W., F.V.). ¶3 The appellant appealed his probationary termination to the Board, and the administrative judge issued an initial decision dismissing his appeal for lack of jurisdiction. McClur e v. Department of Veterans Affairs , MSPB Docket No. DE-315H -15-0365 -I-1, Initial Decision ( July 6, 2015). On March 2, 2016, after exhausting his Office of Special Counsel remedies for his allegation that his termination was due to whistleblower reprisal, the appellant filed an appeal with the Board’s Denver Field Office. IAF, Tab 1, Tab 11 at 67-68. The administrative judge docketed separate appeals for his whi stleblower reprisal claim , MSPB Docket No. DE-1221 -16-0219 -W-1, and his USERRA discrimination claim , MSPB D ocket No. DE-4324 -16-0220 -I-1. IAF, Tab 2 at 2. He joined the appeals for processing and determined that the Board had jurisdiction over both appeals. IAF, Tab 2 at 2-3, Tab 10 at 2-5. ¶4 Following a hearing, the administrative judge issued one initial decision for both appeals finding that the appellant failed to carry his bu rden regarding the USERRA claim and that, although he established a prima facie claim of whistleblower retaliation, the agency met its burden of showing that it would have taken the same action even absen t whistleblowing. IAF, Tab 23, Initial Decision (ID) at 5-16. Because the administrative judge determined that the appellant’s USERRA and whistleblowing claims failed, he denied the appellant’s request for corrective ac tion. ID at 16. ¶5 The appellant has filed one petition for review , primarily arguing that the initial decision contains erroneous findings of fact and that the administrative judge erred in his analysis and conclusion that the agency proved by clear and convincing evidence that it would have taken the same action even in the absence 4 of the whistleblowing. Petition for Review (PFR) File , Tab 1 at 19-29. The agency has opposed the appellant’s petition. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVI EW We will not disturb the administrative judge’s finding that the appellant made a prima facie showing of whistleblower retaliation. ¶6 To establish a prima facie case of whistleblower retaliation, the appellant must prove by preponderant evidence that he mad e a protected disclosure or engaged in protected activity that was a contributing factor in a personnel action taken against him. 5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). On review, it is not disputed that the appellant made such a showing. He alleged that he made seve ral disclosures to the Chief of Surg ery and Orthopedic Services asserting that the agency manipulated data regarding patient wait times, faced a critical shortage of staff in the operating rooms, made minimal attempts to address necessary repairs, and failed to honor contracts with outside vendors. IAF, Tab 1 at 10-11, Tab 6 at 5-7; ID at 12. The administrative judge found that the appellant established by preponderant evidence that he reasonably believed the disclosed information constituted a violation of law, rule, or regulation, as well as a substantial and specific danger to public health or safety. ID at 12-13. This finding has not been challenged on review , and, after our review of the record , we find no reason to disturb it. ¶7 The appellant also alleged that the disclosures were a contributing factor in his termination. IAF, Tab 6 at 17-20. The administrative judge concluded that, because one of the witnesses to the appellant’s misconduct also was present when the appellant ma de his disclosures to the Chief of Surgery , and the deciding official’s decision was based, in part, on that witness’s report regarding the appellant’s misconduct , the deciding official had constructive knowledge of the disclosures. ID at 13; see Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014) (stating that an appellant can show that a protected disclosure was a 5 contributing factor by proving that the deciding official had constructive knowledge of the disclosure, even if the official lacked actual knowledge , and that one way of establishing constructive knowledge is by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action). Thus, the administrative judge found that the appellant established by preponderant evidence that his disclosures were a contribut ing factor to the agency acti on and, consequently , that the appellant established a prima facie case of whistleblower reprisal. ID at 14. These findings have not been challenged on review, and, after our review of the recor d, we find no reason to disturb them. The administrative j udge correctly found that the agency proved by clear and convincing evidence that it would have taken the same action regardless of the whistleblowin g activity . ¶8 Once the appellant makes a prima facie showing of whistleblower retaliation, the burden shift s to the agency to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. Lu, 122 M.S.P.R. 335, ¶ 7. Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than the “preponderance of the evidence” standard. Sutton v. Department of Justice , 94 M.S.P.R. 4, ¶ 18 (2003), aff’d , 97 F. App’x 322 (Fed. Cir. 2004) ; 5 C.F.R. § 1209.4 (e). In determin ing whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board will consider all of the relevant factors, including the following (Carr factors ): the strength of the agency’s evidence in support of its action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions against employees who ar e not whistleblowers but who are otherwise similarly situated. Soto v. Department of 6 Veterans Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).3 The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Lu, 122 M.S.P.R. 335, ¶ 7. The Board considers all the evidence, including evidence that detracts from the conclusion that the agency met its burden. Soto , 2022 MSPB 6 , ¶ 12; see also Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012). ¶9 After conducting a Carr factor s analysis, the administrative judge determined that the agency met its burden and denied the appellant’s request for corrective action. ID at 14-16. The appellant’s primary contention on review is that the administrative judge misapplied the Carr factors and that, therefore, the agency did not meet its burden. PFR File, Tab 1 at 19-28. Strength of the Agency’s Evidence in Support of Its Action ¶10 Regarding the first Carr factor , the administrative judge found that the agency’s reasons for terminating the appellant were overwhelmingly strong . ID at 15. After reviewing the record, we agree with this conclusion, but , due to the administrative j udge’s brief discussion of this factor, we supplement his analysis here. The record shows that the agency submitted two reports from ey ewitnesses to the alleged conduct, IAF, Tab 16 at 11-14, and both witnesses testified at the hearing regarding their observations, HCD (testimony of T.H . and L.W.). The Wichita VA MC Director also testified regarding his involvement in processing the eyewitness repor ts and meeting with the two eye witnesses to discuss their 3 Historically, the Board has been bound by the precedent of the U.S. C ourt 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 rep risal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 7 observations. HCD (testimony of F.V.). The D irector also testified regarding his communication with the deciding official wherein he relayed the information from the two eye witnesses. Id. Additionally, the deciding official testified during the hearing that she relied on a report from one of the eyewitnesses and the Director’s account of his discussion with both eye witnesses in making her decision. HCD (testimony of S.P.); ID at 4. ¶11 In his petition for review, the appellant argues that one of the eyewitnesses dated her report of contact regarding h is misconduct on March 27, 2015, but that it was only submitted to agency officials on April 9, 2015, after she learned that the appellant met with an other agency dir ector. PFR File, Tab 1 at 23-25. He also claims that the eyewitness ’s testimony was “cle arly tainted” because she was aware of the protected disclosures and that her testimony contained “many inconsistencies and evidence of bad faith” because she provided an in correct date in her report . Id. at 14, 21 -22. The appellant further argues that the second eyewitness report was provided only after the termination letter had been issued and that neither the deciding official nor the Director witnessed the alleged misconduct. Id. at 22-23. The appellant also challenges the administrative judg e’s c redibility determinations —which found that agency witnesses provided more credible testimony than did the appellant regarding the alleged misconduc t—and the administrative judge’s denial of one of his witness requests . Id. at 23. ¶12 Regard ing the appellant ’s allegation that the first witness submitted her report after she learned of the appellant’s meeting with an agency director, we find that this allegation is not supported by the record. The email chain to which the appellant refer s does not make clear that the w itness sent her report on April 9, 2015. IAF, Tab 11 at 78-84. Given the redacted portions of the email, the lack of reference to the appellant’s name, the lack of information provided by the attachment graphic, and the lack of adequate context ual clarification, id. at 84, we find that the email chain does not contain sufficient information to 8 establish that the witness only sent the report of the appellant’s misconduct after learning that he met with an agency director. ¶13 Moreover, a lthough the appellant is correct that the deciding official and the Director were not present to personally witness the alleged misconduct, and it appears that one of the eye witness reports was submitted on the same day that the appellant was terminated, IAF, Tab 16 at 14, we find the evidence supporting the agency’s termination action to be strong. The record includes credible testimony4 from at least fo ur witnesses, two of whom directly observed the misconduct, and detailed written reports from the two eyewitnesses . HCD (testimony of T.H ., L.W., F.V., S.P.). Further, even though one of the eye witnesses was present when the appellant made the protected disclosures, this does not weaken the agency’s evidence or “taint” the eyewitness’s testimony , as the administrati ve judge already determined her testimony to be credible. ID at 10. ¶14 We observe that the appellant’s effort to present countervailing evidence was partially hindered by the administrative judge’s denial of one of his witness requests, but we find that th e administrative judge did not err in that denial. The appellant had proffered that the witness could testify “concerning his interactions” with the deciding official regarding a police report about the appellant . IAF, Tab 17 at 14; PFR File, Tab 1 at 25. An administrative judge has wide discretion to control the proceedings, including the authority to exclude testimony he believes would be irrelevant, immaterial, or unduly repetitious. Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353, ¶ 21 (2015); 5 C.F.R. § 1201.41 (b)(8) , (10) . To obtain reversal of an initial decision on these 4 The Board defers to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of the witnesses testifying at a hearing and overturn s such determinations only when it has “sufficiently sound” reasons for doing so. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . Here , the administrative judge’s credibility determinations were based on witness demeanor during the hearing. ID at 10-11. Because the appellant has not provided a “sufficiently sound” reason to overt urn these determinations, we wi ll not disturb them here. 9 grounds, the petitioning party must show on review that a relevant witness or evidence, which could have affected the outcome, was disallowed. See Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011). The administrative judge explained that he denied the appellant this witness because the proffer was open -ended and because the witness was several steps removed from the original evidence. IAF, Tab 18 at 4 n.3. On review, the appellant has not provided any argument or evidence to dispute this explanation or to make the required showing of how that witness would have affected th e outcome. Thus, we find that the appellant failed to show that the administrative judge abused his discretion in this regard or erred in denying the witness request. ¶15 In its totality, and in consideration of the appellant’s countervailing evidence, see Soto , 2022 MSPB 6 ,¶ 11, we find that the agency’s evidence supporting the appellant’s termination is strong. Therefore, we find that this factor cuts in favor of the agency. Existence and Strength of Any Motive to Retaliate on the Part of the Agency Officials Who Were Involved in the Decision ¶16 Regarding the second Carr factor, the administrative judge found that the evidence of agency motive to retaliate was weak . ID at 15. In arriving at this conclusion, he analyzed the evidence of potential retaliatory motive on the part of the Chief of S urgery and the eye witness to the alleged misconduct who also was present for the appellant’s protected disclosures. Id. He found it “inherently improbable” that several months after the appellant made the protected disclosures, the Chief of S urgery , who agreed that the facilitator for the March 2015 meeting did a poor job, “embarked on some kind of secret campaign to get the appellant terminated.” Id. The administrative judge also found it more improb able that the eye witness, who had a prior friendship with the appellant, would fabricate her account of the appell ant’s misconduct in retaliation fo r his whistleblowing activity. Id. 10 ¶17 Although we agree with the administrative judge’s analysis of the second Carr factor as it relates to the two individuals discussed above, we supplement the initial decision to address more explicitly the potential retaliatory motives of the deciding official a nd the D irector to whom the eye witnesses reported their observations. We find that these individuals were the primary agency officials who were involved in the decision to termin ate the appellant and should have been discussed in analyzing agency officials’ motive to retaliate . See Miller v. Department of Justice , 842 F.3d 1 252, 1261 -62 (Fed. Cir. 2016).5 ¶18 On review, the appellant argues that the deciding official had a motive to retaliate because “she did not want to jeopardize her job by defending [his] position on the whistleblower reprisal .” PFR File, Tab 1 at 26. However, although the deciding official may have had constructive knowledge of the appellant’s disclosures for purposes of th e contributing factor analysis , there is no evidence to suggest that she had actual knowledge of the disclosures that could have provided her with a motive to retaliate against the appellant. ID at 13; HCD (testimony of S.P.); see Carr , 185 F.3d at 1324 -26 (addressing the difference in proving whether a protected disclosure was a contributing factor to the adverse action and whethe r the agency met its burden of proving that it would have taken the same action in the absence of the disclosure). Further, although the eyewitness to the alleged misconduct who also was present for the appellant’s protected disclosures submitted a report regarding the appellant’s misconduct, there is no evidence that she otherwise had any influence over the deciding official. See Carr , 185 F.3d at 1326 . Indeed, the deciding official testified that she did not work with the witness and could not recall w hether she actually had met the witness in person. HCD (testimony of S.P.). Regardless, even if we concluded that the witness should be considered an agency official who had influence over the deciding official, the administrative judge determined that the 5 There was no proposing official in this action, as the appellant was terminated during his probationary period. 11 witness did not have a strong motive to retaliate, a nd we agree. ID at 15; see supra ¶ 16. ¶19 The appellant a lso asserts on review that the Director and the Chief of Surgery “had a clear desire to keep the patient wait -times out of the media given the [a]gency’s current media attention to patient wait -times .” PFR File, Tab 1 at 26. The D irector is presumably responsible for the agency’s overall performance, and we agree that the substance of the appellant’s disclosures is of the type that could potentially reflect badly on the agency’s performance and/or reputation even if it did not reflect poorly on the Director directly. See Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 33 (2013) . In Whitmore , 680 F.3d at 1370 , the court stated “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whist leblower personally, as the criticism reflects on them in their capacities as managers and employees.” The court in Whitmore determined that, when a whistleblower makes highly critical accusations of an agency’s conduct that draws the attention of high -level agency manager s, the fact that an agency official is “outside the whistleblower’s chain of command, not directly involved in alleged retaliatory actions, and not personally named in the whistleblower’s disclosure is insufficient to remove the possibili ty of a retaliatory motive or retaliatory influence,” and that the Board should consider any motive to retaliate on the part of the agency official who ordered the action , as well as that of any officials who influenced the action. Id. at 1371. Similarly , in Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019), the court found that, although the deciding official did not have a personal motive to retaliate against the appellant for contradicting an agency Under Secretary, the Board’s administrative judge erred by failing to consider whether he had a “professional retaliatory motive” against the appellant because his di sclosures “implicated the capabilities, performance, and veracity of [agency] managers and 12 employees, and implied that the [agency] deceived [a] Senate Committee.” Here, however, there is no evidence that the Director was aware of the appellant’s disclosures, ID at 13-14; HCD (testimony of S.P., F.V.), a nd we can find no evidence suggesting that the Chief of S urgery was involved in the decision to terminate the appellant. Accordingly, we agree with the administrative judge’s ultimate finding that the evidence o f agency motive to retaliate is weak. Evidence That the Agency Takes Similar Actions Against Employees Who Are Not Whistleblowers but Who Are Otherwis e Similarly Situated ¶20 Regarding the third Carr factor , the administrative judge found that, because the deciding official testified that she never encountered an employee who engaged in the same misconduct as the appellant, this factor is neutral. ID at 16. According to discovery documents submitted by the appellant, the agency limited its response to a request for the identities of other employees who faced similar charges exclusively to employees w ho have reported to the deciding official . IAF, Tab 14 at 44. The agency concluded that th ere were no similar employees. Id. ¶21 On review, the appellant asserts that comparators are not required to be identical to the appellant and alleges that the agenc y manipulated its discovery responses so that its denia l of any similarly situated non whistleblower employees was as specific as possible.6 PFR File, Tab 1 at 28. Although we agree with the appellant that “similarly situated” does not mean “identically s ituated,” see Whitmore , 680 F.3d at 1373 , the appellant has not provided the names of any employees to whom he believes he was similarly situated, but who were rejected by the agency as not similarly situated to him. Nevertheless, we agree with the appellant that the agency took an exceedingly narrow approach to this factor. See 6 To the extent that the appellant’s contention on review amounts to a challenge to the agency’s discovery respo nses, we find that he is precluded from doing so on review because he failed to challenge this particular issue in his motion to compel below. IAF, Tab 14 at 4-11; see Szejner v. Office of Personnel Management , 99 M.S.P.R. 275 ,¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir. 2006). 13 Miller , 842 F.3d at 1262 . When the agency fails to introduce relevant comparator evidence, the third Carr factor is effectively removed f rom consideration, although it cannot weigh in favor of the agency. Soto , 2022 MSPB 6 , ¶ 18; see also Rickel v. Department of the Nav y, 31 F.4th 1358 , 1365 -66 (Fed. Cir. 2022) (“The lack of evidence on the third Carr factor appears neutral [.]”) (internal citation omitted) . If the first two Carr factors are only supported by weak evidence , the failure to present evidence of the third Carr factor may prevent the agency from carrying its overall burden . Smith v. Department of the Army , 2022 MSPB 4 , ¶ 30; see also Miller , 842 F.3d at 1262 -63 (where an agency presented little or weak evidence for the first two Carr factors, the lack of Carr factor three e vidence “if anything[] tends to cut slightly against the government”) . ¶22 Nevertheless, this is not a case that hinges on the third Carr factor. Weighing the Carr factors against one another and as a whole , we find that the agency met its overall burden by clear and convincing evidence. In our estimation, the strength of the agency’s evidence supporting the termination action outweighs the slight evidence of retaliatory motive and the dearth of comparator evidence. Moreover , the appellant has not otherwise provided a reason to disturb the administrative judge’ s finding that the agency proved by clear and convincing evidence that it would have terminated him for his misconduct , regardless of his whistleblowing disclosures. We will not disturb the administrative judge’s findings of fact r egarding the appellant’s USERRA claim. ¶23 On review, the appellant appears to challenge a finding of material fact as it relates to his USERRA claim. The appellant alleges that the administrative judge erred in finding that the appellant provided an inaccurate reiteration of remarks made by a witness at previous hearings and at a deposition. PFR File, Tab 1 at 28; ID at 6-8. The appell ant generally points the Board to “the hearing transcript,” which we understand to be a transcript from a prior Board action and not a transcript for the instant action . PFR File, Tab 1 at 28. The administrative 14 judge outlined the relevant portion of the prior transcript and made his finding based on that port ion and other record evidence. ID at 7-8. The petition for review fails to point to any specific portion of that transcript to refute the administrative judge’s finding. As such, we find that the appellant has identified no specific information in the record that demonstrates that the administrative judge’s finding was erroneous, and we will not disturb that finding here. 5 C.F.R. § 1201.115 (a)(2). ¶24 The appellant also claims on review that the administrative judge erred by “apply[ing] the USERRA legal analysis to this matter as if it were a nonselection complaint and not an appeal challenging his [termination].” PFR File, Tab 1 at 28. In particular , he asserts that the administrative judge gave undue weight to the fact that the agency hired him knowing his military status and that such knowledge does not preclude any future discrimination motivated by an anti-military animus. Id. at 28-29. ¶25 We find the appellant’s claim to be meritless. In addition to agency officials’ early knowledge of the appellant’s military status, the administrative judge also considered testimony regarding specific statements made by one of the witness es who reported the appellant’s misconduct and generalized statements attributed to the deciding official and other agency employees. ID at 6-11. He determined that none of these statements demonstrated a nti-military animus a nd that the record as a whole failed to show that the appellant’s uniformed service was a substantial or motivating factor in his termination. Id.; see Sheehan v. Department of the Navy , 240 F.3d 1009 , 1013 (Fed. Cir. 2001). We find that the administrative judge properly weighed the evidence and provided sound reasoning for his findings. The appellant has not provided a basis to disturb those findings. See, e.g., 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 15 reasoned conclusions); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). ¶26 Based on the foregoing, we affirm the initia l decision as modified, still denying the appellant’s requests for corrective ac tion. NOTICE OF APPEAL RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek 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 t hat forum for more information. (1) Judicial review in general . As a gene ral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 16 within 60 calendar days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevan ce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action tha t is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an app ropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 17 you do, then you must file with the district 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 condi tion, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be fo und at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 18 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the 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. 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any co urt of 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 whistlebl ower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 19 If you 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	MCCLURE_NATHANIEL_R_DE_4324_16_0220_I_1_FINAL_ORDER_2001160.pdf	2023-02-09	null	S	NP
3,575	https://www.mspb.gov/decisions/nonprecedential/SIMMONS_NATHANIEL_J_SF_0752_18_0225_I_1_FINAL_ORDER_2001170.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NATHANIEL J. SIMMONS , Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER SF-0752 -18-0225 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nathaniel J. Simmons , Wawona, California, pro se. Karen D. Glasgow , Esquire, San Francisco, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction. For the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 Effective October 1, 2 017, the agency appointed the appellant, a nonpreference eligible, to the position of Maintenance Worker in Joshua Tree , California . Initial Appeal File (IAF), Tab 5 at 21. Effective January 20, 2018, the agency terminated the appellant during his probat ionary period based on charges that he failed to follow verbal and written supervisory directives, failed to follow established leave policy, and was absent without leave. Id. at 9-20. The appellant timely filed this appeal with the Board , and he requested a hearing. IAF, Tab 1. He asserted, among other things, that the agency engaged in harmful procedural error, discriminated against him because of his disability and his status as a single father of two girls, and he offered an explanat ion for the charges. IAF, Tab 1 at 5, Tab 6 at 3. ¶3 The administrative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing. IAF, Tab 7, Initial Decision (ID) . She found that the appellant failed to raise a nonfrivolous allegation of Board jurisdiction because , as a nonpreference eligible in the excepted service, he was not serving in an appointment pending conversion to the competitive service and he had not completed 2 years of current continuous service at the time of his termination. ID at 1, 3 (citing 5 U.S.C. § 7511 (a)(1)(C)) . The initial decision noted that it would become final on April 10, 2018, unless a petition for review was filed by that date. ID at 4. ¶4 Nearly a year later, on April 4, 2019, the appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. He asserts , among other things, that he w as “out of the 90 day probation[ary] period,” that he was terminated becaus e of his disability and because of the agency’s failure to accommodate him, 3 and that the agency improperly stated his termination date . Id. at 4-6. The agency has filed a response. PFR File, Tab 3. ¶5 In its acknowledgement letter, the Office of the Clerk of the Board informed the appellant that his petition appeared untimely and that untimely petitions had to be accompanied by a motion to accept the filing as timely and/or to waive the time limit. PFR File, Tab 2 at 1. The appellant thereafter filed such a motion .2 PFR File, Tab 4. In it, he asserts that his petition was timely inasmuch as he “did not receive the email with the initial decision until after the final filing date because . . . it had been marked as spam ,” unlike previous filings that were sent to his “main email .” PFR File, Tab 4 at 1. He also states that the time limit should be waived because he has a disability and was without a job or a place to live . Id. at 2. Finally, he contends that he did not ask for an extension of time to file his petition before the deadline because he was seeking legal aid and filing a disability discrimination claim with the Equal Employment Opportunity Commission (EEOC) . Id. at 3. DISCUSSION OF ARGUME NTS ON REVIEW The appellant’s petition for review was untimely filed. ¶6 A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or , if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. 5 C.F.R. § 1201.114 (e). ¶7 The appellant asserts that he did not receive the email containing the initial decision until af ter the “final filing date” because it had been marked as spam. PFR File, Tab 4 at 1. As a registered e -filer, however, the appellant consented 2 The acknowledgement letter informed the appellant that his motion had to be postmarked if mailed or sent by facsimil e on or before April 20, 2019. PFR File, Tab 2 at 2. The appellant’s motion, wh ich was sent by first -class mail, had a barely legible postmark that appeared to read, “22 APR.” PFR File, Tab 4 at 5. Despite the apparent untimeliness of the appellant’s motion, we have nevertheless considered it. 4 to accept all documents issued by the Board in electronic form. IAF, Tab 1 at 2; see 5 C.F.R. § 1201. 14(e)(1). Board documents served electronically on registered e -filers are deemed received on the date of electronic submission. 5 C.F.R. § 1201.14 (m)(2). Here, a Board paralegal specialist certified that the initial decision was sent via electronic mail to the appellant on March 6, 2018. IAF, Tab 8 at 1. We therefore find that the appellant received the initial decision on the date that it was issued, March 6, 2018. The appellant electronically filed his petition for review on April 4, 2019. PFR File, Tab 1. It is therefore nearly 1 year late . The appellant did not show good cause for his untimely filing. ¶8 The Board will waive its filing deadline only upon a showing of good cause for the delay. Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 5 (2014) ; 5 C.F.R. § 1201.114 (g). To establish good cause for the untimely filing of an appeal, a party must show t hat he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P. R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay , the reasonableness of his excuse and his showing of due diligence , whether he is proceeding p ro 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 for review. Gaetos , 121 M.S.P.R. 201 , ¶ 5; Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶9 The appellant is proceeding pro se, which is a factor that works in his favor. However, the remai ning factors do not work in his favor. For example, his nearly 1-year filing delay is significant. See Batiste v. U.S. Postal Service , 98 M.S.P.R. 5 621, ¶ 8 (2005) (finding a pro se appellant’s approximately 10 -month filing delay to be significant), aff’d , 158 F. App’x 294 (Fed. Cir. 2005). ¶10 We have considered the appellant’s assertion that the filing deadline should be waived becaus e of his disability. The Board will find good cause for waiver of its filing time limits when a party demonstrates that he suffered from an illness that affected his ability to file on time. Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). To establish that an untimely filing was the result of an illness, the party must (1) identify the time period during whic h he suffered from the illness, (2) submit medical evidence showing that he suffered from the alleged illness during that time period, and (3) explain how the illness prevented him from timely filing his submission or request ing an extens ion of time. Id. ¶11 The appellant was appointed pursuant to 5 C.F.R. § 213.3102 (u), a Schedule A excepted -service hiring authority pertaining to the appointment of persons with certain d isabilities . IAF, Tab 5 at 21. However, the appellant has not provided any information or medical evidence concerning his disability , the time frame in which he suffered from the disability, or how the disability prevented him from timely filing his peti tion or request ing an extension. Accordingly, he has failed to demonstrate good cause for his untimely filing based on his disability. ¶12 Regarding due diligence, the appellant asks that the Board excuse his untimely petition because the email containing t he initial decision was sent to his spam folder. PFR File, Tab 4 at 1. B ecause the appellant registered as an e -filer, he was responsible for ensuring that email s from @mspb.gov were not blocked by filters and for monitor ing his case at the Repository at e -Appeal Online to ensure that he receive d all case -related documents. 5 C.F.R. § 1201.14 (j)(2) -(3). Although the appellant indicates that, prior to the i nitial decision, he never had problems with emailed pleadings being blocked by filters , PFR File, Tab 1 at 4, it is clear that he failed to monitor his case at the Repository, which demonstrates a lack of due diligence. 6 ¶13 We have also considered the appell ant’s assertion that he was without a job or a place to live. PFR File, Tab 4 at 2. Without an explanation of how these events contributed to the untimeliness of his petition for review, these circumstances do not constitute good cause for the delay in f iling. See Mitchell v. U.S. Postal Service , 111 M.S.P.R. 346 , ¶¶ 3 -8 (2009) (finding that an appellant failed to show good cause for his untimely filed petition for review even though he had a disabled son, was trying to secure unemployment benefits, and was searching for a new home after being evicted), aff’d , 361 F. App’x 132 (Fed. Cir. 2010). ¶14 Finally, we have considered the appel lant’s assertion that he did not ask for an extension of time to file his petition because he was seeking legal aid and filing a disability discrimination claim with the EEOC. PFR File, Tab 4 at 3. However, a n appellant’s attempts to obtain, or inability to obtain , legal representation does not establish good cause for his untimely filing or failure to request an extension of time. Gaines v. U.S. Postal Service , 96 M.S.P.R. 504 , ¶ 7 (2004); Abney v. Office of Personnel Management , 89 M.S.P.R. 305 , ¶ 5 (2001), aff’d , 41 F. App’x 421 (Fed. Cir 2002). Moreover, an appellant’s ability to participate in other litigation undermines his claim that he could not timely file a petition for review or request an extension. See, e.g. , Stribling v. Department of Education , 107 M.S.P.R. 166 , ¶ 14 (2007) (finding that the appellant failed to establish that her medical condition prevented h er from timely filing her petition for review or a request for an extension of time because she was actively participating in other proceedings during the relevant time period) . ¶15 For these reasons , we dismiss the appellant’s petition for review as untimel y filed without good cause shown . This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the probationary termination ap peal. 7 NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions to provide a comprehensive summary of all available review options. As indicated in the notice, the Board cannot advise which option is most approp riate in any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 9 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be 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 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). 10 If so, and you wish to challenge the Board’s rulings o n your whistleblower claims only, excluding all other issues , then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 in terested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board a ppellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of compete nt 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 respect ive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SIMMONS_NATHANIEL_J_SF_0752_18_0225_I_1_FINAL_ORDER_2001170.pdf	2023-02-09	null	SF-0752	NP
3,576	https://www.mspb.gov/decisions/nonprecedential/SKUBIK_CHRISTOPHER_PH_1221_16_0347_W_1_REMAND_ORDER_2001283.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER SKUBIK, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER PH-1221 -16-0347 -W-1 DATE: February 9, 2023 THIS ORDER IS NONPRECEDENTIAL1 Christopher Skubik , Havre de Grace, Maryland, pro se. Justin D. Wilde , Aberdeen Proving Ground, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORD ER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA ) appeal. For the reasons discussed below, we 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 REMAND this matter to the Northeastern Regional O ffice for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant is a GS-14 Supervisory Operations Research A nalyst (ORA ) and the branch c hief of the Systems Analysis Branch in the agency’s Cost & Systems Analysis Division , Resource Management Office, Comm unications -Electronics Command (CECOM ). Initial Appeal File ( IAF), Tab 1 at 1; Tab 22 at 6; Tab 45, Hearing Compact Disc (HCD ) 2 (testimony of the appellant) ; see IAF, Tab 41 at 4. In October 2014 , the agency advertised a GS-15 supervisory ORA position ; the incumbent was to serve as the division c hief of the Cost & Systems Analysis Division . IAF, Tab 6 at 14-24, Tab 22 at 6, HCD 2 (testimony of the appellant’s first -level supervis or). The appellant’s former first-level supervisor , who served as the CECOM deputy director, was the selecting official for the position. HCD 2 (testimony of the appellant’s first -level supervisor ).2 She first selected an applicant who declined the posi tion; she then selected a second applicant who accepted the position, but the offer was later rescinded because the applicant did not meet the educational requirements of the position , and no further selections were made. IAF, Tab 38 at 12, HCD 2 (testimony of the appellant’s first -level supervisor ). The appellant applied and interviewed for the position, but he was not selected. IAF, Tab 6 at 12. ¶3 After learning of his nonselection in January 2015, the appellant expressed concerns about the s election process to his first-level supervisor; his former second -level superv isor, who served as the CECOM director3; the deputy to the commanding general; and a staff member of the agency’s Office of Inspector 2 The appellant’s former first -level supervisor retired from the Federal service. HCD 2 (testimony of the appellant’s first -level supervisor). 3 The appellant’s former second -level supervisor ha s since transferred to another position within the agency. IAF, Tab 44, HCD 1 (testimony of the appellant’s second -level supervisor). 3 General (OIG). IAF, Tab 8 at 12-14. In April 2015, the agency re -advertised the GS-15 supervisory ORA position. IAF, Tab 6 at 36-47. The appellant’s second -level supervisor served as the selecting official and selected the same applicant to whom the position was last offered, but the offer was subseque ntly rescinded and the vacancy announce ment cancelled. IAF, Tab 38 at 13-14. The appellant again applied and interviewed for the position, but he learned in May 2015 that he was not selected. IAF, Tab 8 at 19. ¶4 On June 17, 2015, the appe llant f iled a complaint with the Office of Special Counsel ( OSC ) in which he alleged that his first - and second -level supervisors had provided unauthorized preferences or advantages to applicants external to his division during the selection processes for the GS -15 supervisory ORA position and retaliated against him for raising concerns about the first selection process . IAF, Tab 1 at 5, Tab 8 at 4-24. In letter s dated April 8, 2016, OSC informed the appellant that it had closed its file regarding the complaint and notified him o f his appeal rights. IAF, Tab 1 at 7-9. ¶5 On June 9, 2016, the appellant filed an IRA appeal with the Board allegin g that, in retaliation for raising concerns about unfair and prohibited hiring practices to his chain of command, he was subjected to the following personnel actions: (1 ) on January 12, 2015, his first -level supervisor sent him an email threatening him with disciplinary action; (2 ) on May 27, 2015, he was not selected for the GS -15 supervisor y ORA position; and (3 ) he was e xcluded from key decisions within his division, which included his firs t-level supervisor’s failure to include him in decisions over assigning interns and selecting staff members to attend a September 2015 conference.4 IAF, Tab 1 at 5, Tab 8 at 4-24, 4 The appellant acknowledged that his OSC complaint alleged that prohibited personnel practices occurred during the first GS -15 supervisory ORA selection process, but that he was only contesting the personnel actions described above, which he alleged were taken in retaliation for his voicing concerns after the first selection process. IAF, Tab 13 at 4. The administrative judge subsequently dismissed any allegations regarding the first nonselection process because it occurred prio r to any disclosures. IAF, Tab 16. 4 Tab 9 at 29, Tab 13 at 4, 10, 18 . The appellant reque sted a hearing. IAF, Tab 1 at 2. In her order summarizing the telephonic prehearing conference, the admini strative judge stated that, “i t appears that the agency has conceded that the appellant has made what he believes to be a protected disclosure and has met the knowledge and timing test with regard to such disclosure in relation to the agency’s selection decision ,” and she dictated that the hearing should focus on whether the agency could prove by clea r and convincing evidence that it would have made the same selection decision and taken the same personnel actions absent the appellant’s protected activity. IAF, Tab 29 at 4. Neither party objected to this portion of the order . ¶6 Following a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 46, Initial Decision (ID). The administrative judge foun d that, as to the May 27, 2015 nonselection, the agency conceded that the appellant ma de what he believed to be a protected d isclosure and met the knowledge/ timing test. ID at 11. The administrative judge then found that the January 12, 2015 e mail and the appellant’s supervisors’ failure to assess his leadership skills before he attended a leadership program were not personnel action s. ID at 12-13, 16. Next, she found that the appellant met the knowledge/ timing test concerning the intern assignment and conference attendance decisions. ID at 13-16. However, the administrative judge foun d that that the agency showed by clear and convincing evidence that it would have taken the same actions absent the appellant’s protected activity. ID at 38. In support of her finding , she found that the evidence unequivocally supported management’s decisions during the second selection process to assign interns and to choose staff to a ttend the conference. ID at 17-35. She also found that, while the appellant’s first - and second -level supervisors had some motive to retaliate, there was no evidence of retaliation, and there was little evidence of how the agency treated similarly situat ed non -whistleblowers. ID at 35-38. 5 ¶7 The appellant has filed a petition for review alleging that the administrative judge erred in finding that the January 12, 2015 e mail and his supervisors’ failure to complete the leadership assessment were not personnel action s and challenging numerous findings that the administrative judge made i n concluding that the agency proved by clear and convincing evidence that it would have made the nonselection, intern assignment , and conference attendance decisions absen t the appellant’s protected activity. Petition f or Review (PFR ) File, Tab 1. The agency has filed an opposition to the petition. PFR File, Tab 3. As set forth below, we find that the administrative judge erred in failing to identify and analyze the appellant’s alleged protected disclosure and, as a result, we remand this matter for further adjudication . DISCUSSION OF ARGUME NTS ON REVIEW The appellant exhausted his administrative remedies before OSC and establis hed Board jurisdiction over his appeal. ¶8 To establish Board jurisdiction over an IRA appeal brought pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant must exhaust his administrative remedies before OSC and make nonfrivolous allegations that : (1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described unde r 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); an d (2) the protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as define d by 5 U.S.C. § 2302 (a)(2)(A) .5 5 U.S.C. §§ 1214 (a)(3), 1221 (e)(1) ; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). The administrative judge dismissed for lack of jurisdiction any allegations of wrongdoing that occurre d prio r to any alleged ly protected 5 During the pendency of this appeal, the National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA amen ded various provisions of Title 5 of the U.S. Code. Our decision to remand this appeal would be the same under both pre- and post -NDAA law. 6 disclosure s. IAF, Tab 16. The administrative judge implicitly found that the appellant exhausted his administrative remedies before OSC and made nonfrivolous allegations sufficient to establish Board jurisdiction over th e appeal as to the remaining claims . IAF, Tab 16, Tab 29 at 1-2; ID at 8. We discern no basis for disturbing the administrative judge’s implicit findings on exhaustion. In particular, w e find that the written record, specifically the appellant’s OSC complaint, shows that he exhausted his administrative remedies before OSC as to the claims at issue. IAF, Tab 8 at 4-24, Tab 13 at 4. ¶9 Additionally, in dismissing allegations of wrongdoing that occurred before any allegedly protected disclosures, the administrative judge discussed the evidence the appellant submitted in support of his claim that he made at least one protected disclosure and narrowed the scope of the appeal to whether the agency retaliated a gainst him for “engaging in whistleblowing activity” by taking or failing to take four alleged personnel actions. IAF, Tab 16. In narrowing the scope , the administrative judge implicitly found that the appellant made nonfrivolous allegations that he made at least one protected disclosure, and the protected disclosure was a contributing factor in the four alleged personnel actions , thus finding Board jurisdiction over the remaining claims. Id. Neither party disputes the Board’s jurisdiction over these cl aims, nor do we discern a reason to disturb the administrative judge’s implicit findings that the appellant made nonfrivolous allegations sufficient to establ ish Board jurisdiction over his appeal. The administrative judge failed to identify or analyze the protected disclosure or activity in which the appellant engaged and whether the disclosure or activity was a contributing factor in the personnel actions at issue . ¶10 Once Board jurisdiction is established over an IRA appeal , the appellant may be en titled to corrective action if he proves by preponderant evidence that he made a protected disclosure or engaged in protected activity, and that the protected disclosure or activity was a contributing factor in a pe rsonnel action 7 that was taken or is to be taken against him . 5 U.S.C. § 1221 (e)(1); Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016). However, the Board will not order corrective action if the agency then proves by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected di sclosure o r activity. 5 U.S.C. § 1221 (e)(2); Corthell , 123 M.S.P.R. 417, ¶ 8. ¶11 As to the May 27, 2015 nonselection, t he administrative judge , citing to the agency’s failure to object to her prehearing order, found that the agency conceded the appellant made what he believed to be a protected disclosure and met the knowledge/ timing te st. ID at 11. However, r egardless of any concessions by the agency, “[t]he question of whether a disclos ure is protected under 5 U.S.C. § 2302 (b)(8) is a matter of mixed fact and law and stipulations relating to such matters are not binding.” Jensen v. Department of Agriculture , 104 M.S.P.R. 379, ¶ 7 (2007) (quoting Schneider v. Department of Homeland Security , 98 M.S.P.R. 377, ¶ 17 n. 4 (2005))6; cf. 5 C.F.R. § 1201.63 (providing that parties may stipulate to matters of fact). The administrative judge thus erred in failing to independently analyze whether the appellant proved by preponderant evidence that h e made a protected disclosure, and that the protected disclosure was a contributing factor in a personn el action taken against him. ¶12 The administrative judge also failed to identify the disclosure , or disclosures, made by the appellant. ID at 11. Although the administrati ve judge found that, according to the appellant, he first raised “an issue regarding the selection process with the agency on January 9, 2015,” and she discussed the appe llant’s meetings with his first - and second -level supervisors on that date, she 6 The WPEA, whi ch became effective on December 27, 2012, does not affect the relevant holding in the cited authority, nor does it affect the rel evant holdings in the other authorities cited herein that were issued prior to the effective date of the WPEA. See Pub. L. No. 112-199, 126 Stat. 1465. 8 did not identify the content of the appellant’s disclosure , nor did she identify whether the appellant made a disclosure to one or both supervisors. ID at 3. ¶13 Our review of the record evidence reflects that the appellant has not proven by preponderant evidence that he made a protected disclosure on or before January 9, 2015. He maintained throughout the proceedings below that on January 7, 2015, when he learned in a meeting with his first -level supervisor that he was not selected for the GS -15 supervisory ORA position, he “questioned” the “criteria and weights” she used in scoring the applicants. IAF, Tab 8 at 12, HCD 2 (testimony of the appellant). The appellant also maintained that, during a January 9, 2015 meeting with his first -level supervisor, he told her that he did not understand how a “non -ORA” could have been better qualified than him and that “something just didn’t add up[.]” IAF, Tab 8 at 12, Tab 24 at 34, HCD 2 (testimony of the appellant). The appellant further alleged that, also on January 9, 2015, he met with his second -level supervisor and “shared the same concerns” he had expressed to his first -level supervisor, and he told her that he “had strong reservations that the scoring matrix was done correctly from a mathematical perspective” and that the scoring criteria and weights “could have been determined in such a way as to benefit a ‘non-ORA ’” that did not work in his division. IAF, Tab 8 at 13, HCD 2 (testimony of the appellant) . The appellant asserted that he subsequently met with the d eputy to the commanding general on January 26, 2015, to “outline the specifics of my concerns ,” and with an OIG staff member on February 6, 2015, to “go over my concerns.” IAF, Tab 8 at 14-16. ¶14 The appellant has not established that his statements to his supervisors on or before January 9, 2015, reflected a reasonable belief that his first -level supervisor had violated a law, rule, or regulation by granting unaut horized preference or treatment during the first selection process. Under 5 U.S.C. § 2302 (b)(6), an agency employee with the authority to take, recommend, or approve a personnel action is prohibited from granting any preference or advantage not authorized by 9 law, rule, or regulation to any employee or applicant for the purpose of improving or harming the prospects of any partic ular individual for employment. McDonnell v. Department of Agriculture , 108 M.S.P.R. 443, ¶ 12 (2008). Title 5, section 2302(b)(12) of the U.S. Code provides that it is a prohibited personnel practice to take or fail to take a personnel action if doing so violate s any law, rule, or regulation implementing or directly concerning merit system principles , which , among other things, mandate protection against personal favoritism and provide that recruitment should be from qualified individuals. McDonnell , 108 M.S.P.R. 443, ¶ 12; 5 U.S.C. § 2301 (b)(1). The appellant’s communications with his supervisors asserted that the selection process could have benefit ted individuals that did not perform the same duties as he did or did not work in his division . Yet, he did not allege any specific violation of a law, rule, o r regulation , nor would a disinterested observer with knowledge of the facts known to him at the time conclude that a violation of merit system principles had occurred simply because applicants with diverse qualifications scored higher than he did during the selection pr ocess . See, e.g. , Gryder v. Department of Transportation , 100 M.S.P.R. 564, ¶ 13 (2005) (finding that the appellant did not make a nonfrivolous allegation of a disclosure of wrongdoing whe n he did not disclose facts that led him to conclude that the agency hired candidates who retired before they could be trained and hired unqualified candidates). Such vague , conclusory allegations of wrongdoing are insufficient to constitute a protected disclosure. Salerno , 123 M.S.P.R. 230, ¶¶ 6-7. ¶15 However, it appears undisputed that at some point during his conversations with agency officials and an OIG staff member , the appellant disclosed that his first-level supervisor allegedly had selecte d one of her neighbors during the first selection process, and such a disclos ure is sufficient to allege a violation of merit system principles and an abuse of authority . See, e.g. , Schaeffer v. Department of the Navy , 86 M.S.P.R. 606, ¶¶ 9-10 (2000) (holding that the appellants’ disclosure s that agency officials in charge of a re -engineering study conducted it 10 so as to reward friends and punish perceived enemies constituted a nonfrivolous allegation of a disclosure of a violation of law and an abuse of authority) , overruled on other grounds by Covarrubias v. Social Security Admin istration , 113 M.S.P.R. 583, ¶ 9 n.2 (2010) , overruled on other grounds by Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 n.5 (2014) . Moreover, the appellant’s disclosure of information to an OIG staff member was activity protected under the WPEA. 5 U.S.C. § 2302 (b)(9)(C) . Thus, the appellant has proven, at a minimum , that he engaged in protected activity as of February 6, 2015, when he met with the OIG staff member . IAF, Tab 8 at 16. However , the record does not reflec t the content of the disclosure, or disclo sures, the appellant has alleged making before this date, and to whom and when the disclosure was made. Without evidence concern ing the appellant’s alleged disclosure and the extent to which the relevant agency officials were aware of the disclosure , the administrative judge could not properly evaluate the agency’s evidence that it would have taken the relevant personnel actions i n the absence of the disclosure ; in particular, the existence and extent of any retaliatory motive. See Belyakov v. Department of Health & Human Services , 120 M.S.P.R. 326, ¶¶ 9-11 (2013) (finding that the administrative judge’s limiting testimony regarding the appellant’s disclosures resulted in an unduly restrictive view on the existence and strength of the agency’s motive to retaliate) . ¶16 The administrative judge similarly found that the agency conceded that the appellan t met the knowl edge/timing test and thus did not make independent findings as to whether the a ppellant’s protected disclosure was a contributing factor in the personnel actions at issue . ID at 11. An appellant may demonstrate 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 factor in the personnel action. Dorney v. Department of the 11 Army , 117 M.S.P.R. 480, ¶ 14 (2012) ; see 5 U.S.C. § 1221 (e)(1). An appellant also may 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). By the time of the hearing held in this matter, many agency officials were aware that the appellant had disclose d purported improprieties in the first selection process, but the record does not reflect whether each official became aw are of his purported protected disclosure or activity prior to the personnel actions at issue . Thus, we are unable to ascertain whethe r the appellant has show n that his purported protected disclosure or activity was a contributing factor in the personnel actions . Accordingly, we vacate the administrative judge’s finding that the appellant prove d that his protected disclosure was a contr ibuting factor in the relevant personnel actions and remand this matter for further proceedings . ¶17 On remand, the administrative judge shall allow the parties to further develop the record regarding the appellant ’s disclosures. See Belyakov , 120 M.S.P.R. 326, ¶ 12. The administrative judge then shall determine whether the appellant established by preponderant evidence tha t he made any protected disclosures prior to disclosing information to OIG, and whether the appellant’s protected disclosures and/or activity were a contributing factor in the personnel actions in question. If the administrative judge finds that the appel lant has met his burden, she shall supplement as necessary her findings as to whether the agency has met its burden to show by clear and convincing evidence that it would have taken the personnel action s absent the appellant’s protected disclosure s and/or activity. 12 The administrative judge properly found that the January 12, 2015 email and failure to complete a leadership assessment were not personnel actions , but she erred in finding that the decisions regarding intern assignment and confe rence attendanc e were personnel actions. ¶18 The appellant challenges the administrative judge’s finding that the January 12, 2015 email from his fi rst-level supervisor was not a personnel action on the ground that the email could serve as a basis for future disciplinary action. PFR File, Tab 1 at 5-7, 9 -10. On remand, should the administrative judge confirm that the appellant did not make a protected disclosure or engage in protected activity before the email was issued , the appellant cannot prove that communications with his supervisors were a contributing factor to the January 12, 2015 email. IAF, Tab 6 at 59; see Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015) ( providing that a disclosure that occurs after the personnel action at issue was taken cannot be considered a contributing factor in that personnel action). ¶19 Regardless , we affirm the administrative judge’s find ing that the January 12, 2015 email did not constitute a threatened personnel ac tion. To prevail in his IRA appeal , the appellant must prove that the agency threatened, proposed, took , or failed to take a “personnel action ,” as defined in 5 U.S.C. § 2302 (a)(2) (A). 5 U.S.C. § 2302 (b)(8) , (b)(9) ; Godfrey v. Department of the Air Force , 45 M.S.P.R. 298, 303 (1990). The term “threatened” is afforded a broad interpretation, such that an agency does not have to state that disciplinary action is being proposed or specifically reference a particular kind of discipline to constitute a threatened personnel action. Gergick v. General Services Administration , 43 M.S.P.R. 651, 656 -57 (1990). Nevertheless, for a statement to constitute a threat of a personnel action, the agency must take some action signifying its intent to take a personnel a ction. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015). ¶20 The appellant alleges t hat his supervisor threatened him with disciplinary action in her January 12, 2015 email; however, the statements to which h e refers 13 do not signify the requisite intent to take a disciplinary action. In her email, the appellant’s supervisor notified him t hat she did not view his behavior during their January 7 and 9, 2015 meetings as professional but was “overlooking the behavior this time[.]” IAF, Tab 6 at 59. She further stated that she expected the appellant to ac t professionally in the future and that “[a]ny unprofessional behavior will be handled appropriately .” Id. The supervisor’s decision not to take a disciplinary action for the behavior she deemed unprofessional and issue a general reminder that unprofessi onal behavior could result in disciplinary action, without more, does not indicate an intent to take a disciplinary action and thus does not constitute a personnel action under the WPEA . See, e.g., Lith v. Department of the Treasury , 168 F.3d 1320 (Fed. C ir. 1998) (Table) (nonprecedential) (affirming that a letter of understanding that cautioned the appellant that if he again engaged in certain behavior he could be disciplined in the future was not a personnel action)7; cf. Gergick , 43 M.S.P.R. at 657 (fin ding that the record of inquiry issued to the appellant constituted a threatened personnel action where by the document, standing alone, did not necessarily constitute a threat to take a personnel action, but in light of the extensive investigation that pre ceded the issuance of the record of inquiry, the likelihood of disciplinary action was not insignificant). ¶21 The appellant’s argument -that the email should be considered a personnel action because it could serve as the basis for future discipline -is not persuasive. See PFR File, Tab 1 at 6. A general statement that future misconduct might result in disciplinary action remains a truism for any employee, at any time. See Koch v. Securities & Exchange Commission , 48 F. App’x 778, 787 (Fed. Cir. 7 Historically, the Board has been bound by precedential decisions of the U.S. Court of Appeals for t he Federal Circuit. However, as a result of changes initiated by the Whistleblower Protection Enhancement Act of 2012 , Pub. L. No. 112-199, 126 Stat. 1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L. No. 113- 170, 128 Stat. 1894, and eventually made permanent in 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 jurisdicti on. See 5 U.S.C. § 7703 (b)(1)(B). 14 2002) (non precedential) (“A wide range of agency rules, directives, and counseling measures contain the message, implicit or explicit, that failure to follow those directives or to meet expectations may have adverse consequences … [N]ot all such general statements … constitute actionable ‘threats’ to take adverse action within the meaning of the Whistleblower Protection Act.”). To prevent a supervisor from providing a general reminder to an employee that prospective misconduct could result in disciplinary action would hamper an agency’s ability to effectively manage its workforce . Cf. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981) ( including the clarity with which the employee was on notice of any rules that were violated in committing an offense, or had been warned about the conduct in question, in the nonexhaustive list of factors relevant to the penalty determination in ad verse action cases) . Accordingly, we reject the appellant’s argument that a general warning of the consequences of future misconduct, such as the one at issue here, is a perso nnel action protected under the WPEA. ¶22 The administrative judge found, without explanation, that the appellant’s supervisors ’ failure to complete the leadership assessment was not a personnel action under 5 U.S.C. § 2302 . ID at 16. She then found that the appellant met the knowledge/timing test as to his allegations that he was excluded from the decision to assign three interns to other branches of the division and from a decision as to which staff should attend the Department of Defense Cost Analysis Symposium. Id. The administrative judge properly concluded that the appellants’ supervisors’ failure to complete a leadership assessment was not a personnel action, but she erred in considering the two decisions from which the appellant was excluded as personnel actions. ID at 13-17. ¶23 We find that the appellant did not show that any of the three actions, separately or together, constit uted a personnel action under 5 U.S.C. § 2302 (a)(2)(A). The assessment and decisi ons at issue do not constitute one of the enumerated personnel actions set fort h in 5 U.S.C. § 2302 (a)(2)(A), nor has 15 the appellan t alleged that the assessment or the decisions concern education or training that may “reasonably be expected to lead to an appointment, promotion, perform ance evaluation ” or oth er action described in section 2302(a)(2)(A). 5 U.S.C. § 2302 (a)(2)(A)(ix); IAF, Tab 8 at 17, Tab 9 at 29-30. Finally, the actions described do not rise to the level of a “significant change in duties, responsibilities, or working conditions.” 5 U.S.C. § 2302 (a)(2)(A)(xii). The appellant’s position d escription is not contained in the record and none of the actions appear to comprise a duty essential or significant to his position . See, e.g., Shiva ee v. Department of the Navy , 74 M.S.P.R. 383, 388 -89 (1997) (finding that a change in the building in which the employee worked did not constitute a personnel action) . Even if we cons ider the actions as a whole , the appellant has not shown that these three isolated, minor actions collectively had a significant impact on the overall nature or quality of his working conditions, responsibilities, or duties. See Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 14-15 (holding that to amount to a “significant change” under section 2302(a)(2)(A)(xii), agency action s, individually or collectively, must have a significant impact on the overall nature or quality of an employee’s working conditions, responsibilities, or duti es). Accordingly, we find that none of the three actions at issue constituted a personnel action and vacate the administrative judge’s findings regarding the intern assignment and conference attendance decisions. The burden remains with the agency to show by clear and convincing evidence that it would not have selected the appellant for the GS-15 supervisory ORA position in the absence of his protected activity . . ¶24 On review, the appellant challenges numerous findings the administrative judge made in concluding that the agency showed by clear and convincing evidence that it would not have selected the appellant during the second GS -15 supervisor y ORA selection absent his protected activity. PFR File, Tab 1 at 13-24. In determining wheth er an agency has shown by clear and convincing 16 evidence that it would have taken the same personnel action in the absence of protected activity, the Board will consider the following factors (“Carr factors” ): the strength of the agency’s evidence in suppo rt of its action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions against employees who are not whistleblowers but are other wise similarly situated. 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). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Lu v. Department of Homeland Secu rity, 122 M.S.P.R. 335 , ¶ 7 (2015). In assessing whether the agency has met its burden by clear and convincing evidence, the Board must consider all the pertinent evid ence in the record, and it must not exclude or ignore countervailing evidence by only looking at the evidence that supports the agency’s position. Herman v. Department of Justice , 119 M.S.P.R. 642 , ¶ 15 (2013); see also Whitmore v. Department of Labor , 680 F.3d 1353 , 1367 -68 (Fed. Cir. 2012 ). . ¶25 The appellan t generally allege s that the administrative judge either erred in crediting certain witness testimony or misunderstood the import of certain evidence, and we find those assertions to be without merit. PFR File, Tab 1 at 13-24. The Board defer s to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observ ing the demeanor of witnesses testifying at a hearing. See Haebe v. Departme nt of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). ¶26 In applying the Carr factor s, the administrative judge acknowledged most of the arguments the appellant again raises on review but found that witness testimony and documentary evidence supported the agency’s decisions during the second selection process and showed that while agency officials had some motive 17 to retaliate against the appellant , there was little evidence of retaliation . ID at 17-37. We have r eviewed the record and conclude that the administrative judge’s credibility determinations and factual findings regarding the selection process are detailed, well -reasoned, and supported by the record. Moreover, the appellant has not shown that the administrative judge failed to proper ly weigh the record evidence in concluding the agency supported its selection decision; rather, his arguments amount to mere disagreement with the qualifications the selecting official sought in a GS -15 supervisory ORA . See Broughton v. Department of Heal th & Human Services , 33 M.S.P.R. 357 , 359 (1987) (observing that mere ly reargu ing factual issues already raised and properly resolve d by the administrative judge bel ow do not establish a basis for review). ¶27 As set forth above, the administrative judge’s failure to identify the appellant’s protected disclosures and/or activity limited the administrative judge’s ability to fully evaluat e the evidence regarding the second Carr factor, the existence and strength of any motive to retaliate on the part of the agency officials wh o were involved in the relevant personnel decision. See supra ¶ 15. Additionally, in applying the second Carr factor, the administrative judge held that the appellant “fail[ed] to adequately show” how his supervisors were motivated to retaliate against him and that his belief that his first -level supervisor was biased during the second selection process was “insu fficient to outweigh the agency’s proffered evidence .” ID at 37. Although the administrative judge discussed all the evidence concerning the supervisors’ motive to retaliate against the appellant, by discussing how the appellant failed to adequately show a motive to retaliate, the administrative judge may have improperly shifted the burden of proof to the appellant in considering this factor. On remand, the administrative judge shall weigh the Carr factor s in assessing whether the agency met its burden by clear and convincing evidence, and shall properly place the burden of proof on the agency to prove that it would have taken the same personnel action s in the absence of protected activity . 18 ¶28 In applying the third Carr factor, the administrative judge found that there was little evidence of how the agency treat ed similarly situated employees who were not whistleblowers and stated that “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis.” ID at 38 (quoting Whitmore , 680 F.3d at 1374 ). We agree. Nevertheless, on this issue the Board has also previously adopted the reasoning of the U.S. Court of Appeals for the Federal Circuit that “the failure to produce such evidence if it exists ‘may be at the agency ’s peril, ’ and ‘may well cause the agency to fail to prove its case overall. ’” Smith v. Department of the Army , 2022 MSPB 4 , ¶ 30 (quoting Whitmore , 680 F.3d at 1374 ). In this case, it does not appear that the agency presented any evidence as to whether the agency took similar actions against similarly situated employees who were not whistleblowers. On remand, the administrative judge shall consider whether the agency affirmatively presented evidence that there were no similarly situated employees to the appellant, in which case the third Carr factor is removed from the analysis, or whether the agency did not present any evide nce on the issue of similarly situated employees, in which case the administrative judge shall take that into consideration when determining whethe r the agency has met its burden of proving by clear and convincing evidence that it would have taken the same actions absent the appellant’s protected activity . ¶29 In sum, on remand, the administrative judge shall identify the appellant’s protected disclosu res and/or activity, determine whether the protected disclosures and/or activity were a contributing factor in the personnel actions in question , and reapply the Carr factors with the appropriate burden of proof, incorporating the identified protected disc losures , and considering whether the agency pr esented any evidence of its treatment of employees similarly situate d to the appellant who were not whistleblowers . 19 ORDER ¶30 For the reasons discussed above, we remand this case to the Northeastern Regional O ffice for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SKUBIK_CHRISTOPHER_PH_1221_16_0347_W_1_REMAND_ORDER_2001283.pdf	2023-02-09	null	PH-1221	NP
3,577	https://www.mspb.gov/decisions/nonprecedential/MCCAULEY_DAVID_J_CH_3443_16_0581_I_1_REMAND_ORDER_2001295.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID J. MCCAULEY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-3443 -16-0581 -I-1 DATE: February 9, 2023 THIS ORDER IS NONPRECEDENTIAL1 David J. McCauley , Coral Springs, Florida, pro se. Janet M. Kyte , Esquire, Hines, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a pe tition for review of the initial decision, which dismissed his appeal for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant ’s petiti on 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 REMAND the case to the regional office for further adjudicatio n in accor dance with this Order. BACKGROUND ¶2 The appellant resigned from his Medical Support Assistant position in Bay Pines, Florida, on November 1, 2013.2 McCauley v. Department of Veterans Affairs , MSPB Docket No. CH -3443 -14-0099 -I-1, Initial Appeal File (0099 IAF), Tab 7 at 4. Subsequently, he applied for the same position in St. Louis, Missouri, and appealed the agency’s decision not to select him as a violation of his rights under the Veterans Employment Opportunities Act of 1998. 0099 IAF, Tab 1; McCauley v. Department of Veterans Affairs , MSPB Docket No. CH -3443 -14- 0099 -I-2, Appeal File, Tab 10. After two dismissals without prejudice and a Board remand, the administrative judge issued an initial decision that dismissed the appeal as moot, finding that the agency had properly reconstructed the hiring process and that the appellant had obtained all of the relief to which he was entitled. McCauley v. Department of Veterans Affairs , MSPB Docket No. CH - 3443 -14-0099 -B-1, Remand Initial Decision at 7 (May 7, 2016). The Board denied the appellant’s petition for review; however, it forwarded the appellant’s allegation in his petition for review that his resignation constituted a constructive removal to the Board’s Central Regional Office for docketing as a separat e adverse action appeal. McCauley v. Department of Veterans Affairs , MSPB Docket No. CH -3443 -14-0099 -B-1, Final Order, ¶¶ 1, 11 (Sept. 13, 2016). ¶3 The regional office docketed the constructive removal appeal, which is the appeal now before us, and the admi nistrative judge issued an acknowledgment order setting forth the appellant ’s burden of proof as to jurisdiction in involuntary resignation cases. McCauley v. Department of Veterans Affairs , MSPB Docket No. CH -3443 -16-0581 -I-1, Initial Appeal File (0581 I AF), Tabs 1 -2. She ordered 2 Some of the background facts relevant to this appeal were presented in the appellant’s other appeals, McCauley v. Department of Veterans Affairs , MSPB Docket No s. CH- 3443 -14-0099 -I-1, CH-3443 -14-0099-I-2, and CH-3443 -14-0099 -B-1. 3 the parties to file evidence and argument on the question of Board jurisdiction. 0581 IAF, Tab 2 at 3. The appellant did not respond, and the administrative judge dismissed the appeal for lack of jurisdiction. 0581 IAF, Tab 7, Initial Decision. ¶4 In his petition for review , the appellant states that the administrative judge erred in stating that he resigned from a position in St. Louis, because he in fact resigned from a position in Florida. McCauley v. Department of Veterans Affairs , MSPB Docket No. CH -3443 -16-0581 -I-1, Petition for Review (PFR) File, Tab 1 at 4. For the first time on review, he contends that he resigned because a Human Resources official in St. Louis told him that he had to resign from his Florida position a nd move to St. Louis to apply for positions there. Id. The appellant argues that the actions of the Human Resources official coerced his resignation. Id. The agency has responded in opposition to the petition. PFR File, Tab 3 . ANALYSIS ¶5 The Board or dinarily will not consider evidence or argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party ’s due diligence. Banks v. Department of the Air Fo rce, 4 M.S.P.R. 268 , 271 (1980 ). However, we have considered the appellant’s arguments on review because his new arguments implicate the Board’s jur isdiction, an issue that is always before the Board and which may be raised by any party or sua sponte by the Board at any time during a Board proceeding. See Lovoy v. Department of Health and Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003). ¶6 A decision to resign is presumed to be a voluntary act outside the Board ’s jurisdiction, and the app ellant bears the burden of showing by a preponderance of the evidence that his resignation was involuntary and therefore tantamount to a forced removal. Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586 , ¶ 15 (2009). The presum ption of voluntariness may be rebutted in a number of 4 ways, including if the employee can establish that the resignation was the product of duress o r coercion brought on by Government action, or of misleading or deceptive information.3 Heining v. General Services Administration , 68 M. S.P.R. 513, 519 (1995) ; see Scharf v. Department of the Air Force , 710 F.2d 1572 , 1574 (Fed . Cir. 1983). ¶7 In making a claim of involuntariness ba sed on misinformation or deception by the agency, t he misleading information can be negligently or even innocently provided; if the employee materially relies on such misinformation to his detriment, based on an objective evaluation of t he circumstances, h is resignation is considered involuntary. Covington v. Department of Health and Human Services , 750 F.2d 937 , 942 (Fed. Cir. 1984). A decision based on misinformation or lack of information cannot be binding as a matter of fundamental fairness and due process. Id. at 943. The principles set forth in Covington require an agency to provide information that is not only correct in nature but also a dequate in scope to allow an employee to make an informed decision. Baldwin , 111 M.S.P.R. 586 , ¶ 16. This includes an obligation to correct any erroneous information an agency has reason to know an employee is relying on. Id. ¶8 An appellant is entitled to a jurisdictional hear ing in a constructive removal appeal based upo n misinformation when the appellant sets forth allegations of fact that, if true, would show that he was misinformed, and he acted on that misinformation to his detriment . Gibeault v. Department of the Treasury , 114 M.S.P.R. 664, ¶ 6 (2010). For sufficient background, we turn to allegations the appellant made in prior cases, as set forth above in footnote 2, which all arose 3 The Board has jurisdiction over constructive actions, such as an involuntary resignation, based on various fact patterns, but all constructive action claims have two things in common: (1) the employee lacked a meaningfu l choice in the matter; and (2) it was the agency’s wrongful actions that deprived the employee of that choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 (2013) ; see Brown v. U.S. Postal Service , 115 M.S.P.R. 88 , ¶ 8 (2010). 5 from substantially the same set of facts, because fundamental fairness requires us to construe this pro se appellant ’s allegations liberally. See Melnick v. Department of Housing and Urban Development , 42 M.S.P.R. 93 , 97-98 (1989) (observing that parties without legal representation are not required to plead issues with precision and are entitled to a liberal interpretation of their allegations), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table). ¶9 In one of his prior appeals, the appellant alleged that he had been employed at the agency facility in St. Louis, Missouri, but transferred to an agency facility in Bay Pines, Florida, to help care for his seriously ill brother . 0099 IAF, Tab 7 at 4. In a subsequent iteration of that appeal , the appellant explained that, while he was employed by the agency in Bay Pines, Florida, he began to inquire about returning to a position in St. Louis. McCauley v. Department of Veterans Affairs , MSPB Docket No. CH -3443 -14-0099 -B-1, Remand Petition for Review File, Tab 1 at 5. He further stated that a Human Resources official in St. Louis —the one referenced in the instant petition for review —told him that he would have to resign from his position in Bay Pines to be able to apply for “local” positions in St. Louis . Id. He also alleged in that appeal that he came to believe that the Human Resources official’s statement was misinformation because he believed that, while he was employed in Florida, he was eligible to apply for posi tions in St. Louis. Id. at 5-6. Additionally, and to reiterate the appellant’s allegations in the instant petition for review, he further asserts that he resigned because a Human Resources official told him that he had to resign from his Florida position and move to St. Louis to apply for positions there and that such an action constituted coercion. PFR File, Tab 1 at 4. He also contends that he materially relied on the Human Resources official’s information to his detriment because he did in fact resig n from his position in Bay Pines and applied for positions in St. Louis, Missouri, where he was not considered eligible for vacancies as an internal candidate. Id. 6 ¶10 We find, under the circumstances here, that the appellant has made a nonfrivolous allegat ion that his resignation was involuntary due to misinformation purportedly provided to him by the agency’s Human Resources official in St. Louis. An appellant who makes a nonfrivolous allegation casting doubt on the presumption of voluntariness is entitle d to a hearing on the issue of Board jurisdiction. Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 (Fed. Cir. 1985) ; Gibeault , 114 M.S.P.R. 664, ¶ 6. Accordingly, we remand this case to the Central Regional Office for a hearing on the jurisdictional issue and further development of the record including through discovery. The appellant ’s access to discoverable information is especially important whe n, as here, the agency is likely to be in sole possession of evidence of internal agency rules and regulations necessary for the appellant to support his case. See Russo v . Department of the Navy , 85 M.S.P.R. 12 , ¶ 6 (1999). ORDER ¶11 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MCCAULEY_DAVID_J_CH_3443_16_0581_I_1_REMAND_ORDER_2001295.pdf	2023-02-09	null	CH-3443	NP
3,578	https://www.mspb.gov/decisions/nonprecedential/GREEN_NORRIS_WENDELL_NY_844E_22_0056_I_1_FINAL_ORDER_2001340.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NORRIS WENDELL GREEN , Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER NY-844E -22-0056 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Norris Wendell Green , New York, New York, pro se. James W. Mercier , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of an Office of Personnel Management reconsideration decision as untimely filed without good cause shown . On petition for review, the appellant argues for th e first time that several circumstances contributed to his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 305-day delay in filing, such as illness, unexpected deaths in his family, and COVID -19. Petition for Review File, Tab 1 at 3 -5. Generally, we grant petitions such as this one only in the followi ng circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL 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. § 77 03(b). Although we offer the following summary of available appeal rights, the Merit 2 As noted, the appellant’s arguments regarding illness, deaths in the family , and COVID -19 are raised for the first time on review. Generally, the Board will not consider an argument raised for the first time on review absent a showing of new and material evidence not previously available despite due diligence. See Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016). The appellant has not made this showing. Even in consideration of these arguments, however, the appell ant has not provided the Board with any details surrounding any of the above -referenced circumstances. As such, his has not established good cause for his untimely appeal . 3 Since the issuance of the initial decision in this matter, the Board may have upd ated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order mu st file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 4 http://www.mspb.gov/p robono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation i n a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fede ral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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, 5 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method 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 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction .4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 t he U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 15 10. 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	GREEN_NORRIS_WENDELL_NY_844E_22_0056_I_1_FINAL_ORDER_2001340.pdf	2023-02-09	null	NY-844E	NP
3,579	https://www.mspb.gov/decisions/nonprecedential/MELLICK_TYLER_A_SF_0752_16_0121_B_1_FINAL_ORDER_2001345.pdf	ERROR: HTTPSConnectionPool(host='www.mspb.gov', port=443): Read timed out. (read timeout=30)	MELLICK_TYLER_A_SF_0752_16_0121_B_1_FINAL_ORDER_2001345.pdf	Date not found	null	null	NP
3,580	https://www.mspb.gov/decisions/nonprecedential/HANNAH_REGINALD_SF_0353_21_0574_I_1_FINAL_ORDER_2001363.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD REGINALD HANNAH, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER SF-0353 -21-0574 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Reginald Hannah , Moorpark, California, pro se. Timothy E. Heinlein , Esquire, San Francisco, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his restoration appeal for lack of jurisdiction . On petition for review, the appellant the appellant challenges the administrative judge’s determination that the Board lacks jurisdiction over this appeal . Generally, we grant pe titions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the pe tition for review. Except as expressly MODIFIED to clarify the appropriate jurisdictional burden of proof , we AFFIRM the initial decision.2 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 stat ute, the nature of your claims determines the time limit for seeking such review and the appropriate 2 In the initial decision, the administrative judge relied on 5 C.F.R. § 1201.56 (b)(2) for the proposition that the appellant has the burden of proving that the Board has jurisdiction over the appeal by a preponderance of the evidence. However, as set forth in the administrative judge’s Jurisdiction Order, an appellant establishes jurisdiction over a restoration of duty appeal by making nonfrivolous allegations on each of the substantive j urisdictional elements applicable to the appeal. 5 C.F.R.§ 1201.57 . The initial decision’s failure to set forth the correct jurisdictional burden of proof does not provide a basis for r eview because it is not prejudicial to the appellant’s substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) . We nonetheless modify the initial decision to clarify the appellant’s jurisdictional burden. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As in dicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of avail able appeal rights, the Merit Systems Protection Board does not provide legal advice on which 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 withi n their jurisdiction. If you wish to seek 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 re sult in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appro priate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorne y will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HANNAH_REGINALD_SF_0353_21_0574_I_1_FINAL_ORDER_2001363.pdf	2023-02-09	null	SF-0353	NP
3,581	https://www.mspb.gov/decisions/nonprecedential/DUNN_ORLANDIS_M_CH_0752_16_0505_I_1_FINAL_ORDER_2001367.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ORLANDIS M. DUNN, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER CH-0752 -16-0505 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 David W. Neel , Esquire, Shaker Heights, Ohio , for the appellant. Raymond Wacker , South Euclid, Ohio, for the appellant. Miriam Dole , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his mixed -case removal appeal as untimely . Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error 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. Except as expressly MODIFIED to supplement the administrative judge’s analysis on the question of whether the appellant made contact with an equal employment opportunity (EEO) representative within the regulatory timeframe, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant, a preference -eligible Carrier Technician with the agency in Cleveland, Ohio, was removed from his position for failure to maintain a regular work schedule, effective March 13, 2015. Initial Appeal File (IAF), Tab 7 at 39-42, 60 . Believing that his removal was based on disability discrimination, the appellant contacted the agency’ s EEO office on April 21, 2015, but he did not engage in any further process related to filing a formal co mplaint of discrimination at that time. IAF, Tab 27 at 8 . He later filed a grievance, which was denied by the arbitrato r as untimely filed. IAF, Tab 7 at 62 . After the issuance of the arbitrator’s decision on August 20, 2015 , the appellant again contac ted an EEO counselor with the agency on August 25, 2015, alleging disability discrimination over his removal. Id. at 74 . He advised the EEO office that the “date of incident” was August 20, 2015 —the date of the arbitration decision —as opposed to March 13, 2015 — the effective date of his removal. Id. 3 The appellant and the agency engaged in the appropriate process to investigate a complaint of discrimination, and on June 10, 2016, the agency issued a final decision finding no discrimination. Id. at 18 -34. On July 20, 2016, the appellant filed the instant appeal with the Board. IAF, Tab 1. ¶3 The administrative judge issued an order on timeliness requiring the appellant to show that his appeal to the Board was timely filed. IAF, Tab 3. Both parties res ponded, and the administrative judge scheduled a hearing on the question of timeliness. IAF, Tabs 5, 7, 14, 17, 19 . In addition, the agency also raised the question of the timeliness of the appellant’s contact with an agency EEO counselor in its narrativ e response and motion to dismiss and in its prehearing submission. IAF, Tabs 7, 22. After reviewing the pleadings and holding two telephonic status conferences, IAF, Tabs 13, 20, the administrative judge issued an order requiring the parties to file addi tional pleadings on the question of whether the appellant’s contact with the agency’s EEO counselor was timely, as it bore on the ultimate timeliness of the appellant’s appeal, IAF, Tab 24 at 1 -2 (citing 5 C.F.R. § 1201.154 (b); Landingham v. U.S. Postal Service , 81 M.S.P.R. 77 , ¶ 10 (1999) ). The administrative ju dge canceled the scheduled hearing to allow more time for the parties to submit additional pleadings. IAF, Tab 24 at 2. ¶4 Without holding a hearing, the administrative judge issued an initial decision. IAF, Ta b 29, Initial Decision (ID) . He acknowledged t he appellant’s contact with the EEO counselor on April 21, 2015, but noted that the appellant failed to provide any of the agency’s requested information, resulting in the agency closing his request for counseling. ID at 6 . The administrative judge deter mined that the actual date of the appellant’s initial contact with the agency’s EEO counselor was August 25, 2015. ID at 3 . Because this date exceeded the time limit imposed by 29 C.F.R. § 614.105 (a)(1), which requires the appellant to make initial contact with an EEO counselor within 45 days of the discriminatory action, the administrative judge found that the appellant’s formal complaint of 4 discrimination was untimely. ID at 3 -4. He also found that the appellant failed to meet any of the permissible reasons for extending the 45 -day deadline , and he dismissed the appeal as untimely . ID at 3-7 (citing 29 C.F.R. § 1614 .105 (a)(2)) . ¶5 The appellant has filed a petition for review arguing that he was entitled to a hearing on the question of timeliness and that , contrary to the administrative judge’s finding, he made timely contact with an EEO counselor . Petition for Review (PFR) File, Tab 1 at 4. The agency has filed a response to the appellant’s petition. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 When an appellant has been subjected to an action appealable to the Board and raises issues of prohibited discrim ination, he may file a timely formal complaint of discrimination with the agency or a timely appeal with the Board. Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶ 11 (2016); 5 C.F.R. § 1201.154 (a). When, as in this case , an appellant elects to file a complaint of discrimination, it must comport with the regulatory r equirements set forth in 29 C.F.R. §§ 1614.105 -1614.106. These regulations require a “pre -complaint process.” 29 C.F.R. § 1614.105 . Part of that process requires an aggrieved person to make initial contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effect ive date of the action. Conover v. Department of the Army , 78 M.S.P.R. 605 , 613 -14 (1998); 29 C.F.R. § 1614.105 (a)(1). The regulations further discuss the pre-complaint steps that must be taken by the agency and the appellant, which ultimately determine the date by which a formal complaint of discrimination must be filed with t he agency. 29 C.F.R. §§ 1614.105 -1614.106. ¶7 After filing a timely formal complaint, the appellant may file an appeal with the Board within 30 days of his receipt of the agency’s final decision or, if the agency failed to resolve his complaint within 120 days, any time after those 5 120 days. 5 C.F.R. § 1201.154 (b). Thus, to gain the right to appeal to the Board in a mixed case in which the appellant elected to proceed with the agency’s internal EEO process , both an appellant’s formal complaint of discri mination to the agency and his appeal to the Board must be timely filed. 5 C.F.R. § 1201 .154 (b); 29 C.F.R. § 1614.106 (b). The appellant bears the burden of proof, by a preponderance of the evidence, on the issue of timeliness. See Maul din v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 5 (2013); 5 C.F.R. § 1201.56 (b)(2)(i)(B). ¶8 In the initial decision, the administrative judge found that the appellant’s complaint to the agency was untimely under 29 C.F.R. § 1614.105 (a), thereby depriving the appellant of his right to appeal his removal to the Board. ID at 4 . This finding was based on the administrative judge’s determination that the appellant made initial contact with an agency EEO counselor on Augus t 25, 2015. ID at 1 -2. Although we agree with the admini strative judge’s ultimate conclusion that the appellant’s EEO activity prior to his Board appeal was untimely, we modify his analysis to consider in greater detail the appellant’s April 21, 2015 contact with an EEO counselor. ¶9 The plain language of 29 C.F.R. § 1614.105 (a)(1) requires only that an aggrieved person “initiate contact” with an EEO counselor within 45 days of the effec tive date of the agency action. Id. On review, th e appellant argues that he initially contacted the E EO counselor on April 21, 2015, which would place him within the 45 -day time limit mandated by the regulation. PFR File, Tab 1 at 4. To support this argument, the appellant refers to a letter from the agency’s EEO contact center. IAF, Tab 27 at 8. Although the letter ultimately closes the appellant’s request for counseling due to his failure to provide the requested information, it re iterates the appellant’s initial contact date of April 21, 2015. Id. Thus, it appears that the appellant met the 45 -day initial contact requirement set forth in 29 C.F.R. § 1614.105 (a)(1); see Lengerich v. Department of the Interior , 6 454 F.3d 1367 , 1370 (Fed. Cir. 2006) (stating that a regulation should be interpreted by its plain language). ¶10 Nonetheless, 5 C.F.R. § 1201.154 , the regulation providing for Board review in mixed -case appeals , requires the appellant to have filed a timely formal complaint of di scrimination with the agency. Because the appellant did not continue with the pre -complaint process outlined in 29 C.F.R. § 1614.105 , there was no timely complaint filed , or any formal complaint at all, as a result of the April 21, 2015 contact . IAF, Tab 27 at 8 . Therefore, we find that, due to the appellant’s own inaction, he failed to file a timely formal complaint of discrimination and that, although the administrative judge relied on the August 25, 2015 date as the date of initial contact, the ultimate dismissal for untimeliness was proper . ¶11 Although it is not clear why the administrative judge disregarded the April 21, 2015 contact , his reliance on August 25, 2015 , as the initial contact date is not entirely misplaced. ID at 6 . In an EEO dispute resolution specialist’s inquiry report, the date recorded for the initial contact with the EEO office is August 25, 2015. IAF, Tab 7 at 74. Even if we determined , in the alternative , that the date of the appellant’s initial contact was August 25, 2015, we would still find the administrative judge’s dismissal for untimeliness to be proper. ¶12 Initial contact made on August 25, 2015, would exceed the 45 -day limit imposed by 29 C.F.R. § 1614.105 (a)(1) by several months; h owever, the regulation provides four permissible reasons for extending the 45 -day deadline . ID at 3 -7 (citing 29 C.F.R. § 1614.105 (a)(2)) . One of those reasons is that, despite due diligence, the appellant was prevented from making counselor contact. 29 C.F.R. § 1614.105 (a)(2) .2 The appellant has argued that after his 2 The administrative judge discussed the other possible reasons for extending the deadline and found that none applied to the appellant. ID at 3 -7. These findings have not been challenged on review , PFR File, Tab 1 at 4, and we find no reason to disturb them here. 7 removal an EEO counselor informed him that it would be more prudent to proceed with a grievance before filing a formal complaint of discrimination with the agency . IAF, Tab 27 at 6 -7. Regardless of the veracity of this assertion, the record is clear that in April 2015, the agency sent the appellant information to be completed and returned in order to proceed with the pre -complaint process , and the appellant did neither.3 Id. at 8. Ultimately , it was his own inaction s that halted the first contact with an EEO counselor , not the agency’s alleged prevention . Thus, we agree with the administrative judge’s conclusion that the appellant failed to engage in basic due diligence as required by 29 C.F.R. § 1614.105 (a)(2) to receive a waiver of the 45 -day period. ID at 6. ¶13 The appellant also argues on review that the Board is required to defer to the agency’s determination on the timeliness of a formal complaint of discrimination . PFR File, Tab 1 at 4. He references a nonprecedential order issued by the Board that remanded an appeal in which the initial decision rejected an agency’s determination that the appellant’s EEO complaint was timely filed, finding instead that the EEO complaint was unt imely because the appellant did not contact the agency’s EEO counselor within 45 days of the discriminatory act. Id. (citing Portal v. Department of Labor , MSPB Docket No. DC -0752 -14-0225 - I-1, Remand Order (Portal RO), ¶ 10 (Feb. 27, 2015)). We find the appellant’s 3 On review, the appellant argues that the administrative judge improperly made credibility determinations concerning his assertions that an EEO counselor told him to file a grievance bef ore filing an EEO complaint. PFR File, Tab 1 at 4. He argues that the administrative judge should have held a hearing to determine the credibility of his claims. Id. The Board has held that when an appellant has requested a hearing in his appeal and th e administrative judge determines that there is a dispute of material facts relating to timeliness, the appellant is entitled to a hearing on timeliness. Brown v. U.S. Postal Service , 106 M.S.P.R. 12 , ¶ 16 (2007). Here, the administrative judge found there to be no disputed material facts, ID at 3, and we agree. We find the appellant’s assertions regarding the conversations with an EEO counselor to be immaterial. O ther portions of the written record show that the agency’s actions, regardless of its alleged statements , prove that it properly engaged in the pre -compl aint process with the appellant and that the appellant failed to engage in return . IAF, Tab 27 at 7. Therefore, we agree with the administrative judge that there is no dispute of material fact , and we find his decision on t he written record to be proper. Brown , 106 M.S.P.R. 12 , ¶ 16. 8 reliance on Portal to be misplaced. In that case, the agency had mad e an explicit determination on the question of timeliness , Portal RO, ¶ 5, and it is well settled that the Board must defer to the employing agency’s determinations regarding the timeliness of discrimination complaints , Cloutier v. U.S. Postal Service , 89 M.S.P.R. 411 , ¶ 6 (2011). ¶14 In this case, however, there was no explicit determination on the question of timeliness. IAF, Tab 7 at 18 -34. The appellant provided inaccurate information to the EEO counselor by claiming that the date of the discriminatory action was August 20, 2015, the date of the arbitrator’s grievance decision, rather than March 13, 2015, the effective date of his removal. Id. at 74. Given that the initial contact date recorded on the relevant f orm was August 25, 2015 —five days after the arbitrator’s decision —the EEO counselor would have had no reason to question the timeliness of the contact. Further, both the Board and the Equal Employmen t Opportunity Commission have indicated that an agency’s acceptance and investigation of a complaint with no finding on the issue of timelin ess is not a waiver of the time limit for initiatin g contact with an EEO counselor. Landingham , 81 M.S.P.R. 77 , ¶ 10 ; Ziman v. U.S. Postal Service , EEOC Appeal No. 01842595, 1986 WL 635226 at 8 ( July 23, 1986) . Because we have no timeliness determination to which to defer, and in the absence of such a determination, the 45 -day time limit is not considered to be waived , we find the appellant’s argument to be meritless . ¶15 Regardless of whether the appellant’s initia l contact date with an agency EEO counselor was April 21, 2015, or August 25, 2015, we find that the appellant failed to file a timely formal complaint of discrimination. Accordingly, we affirm the initial decision as modified herein . 9 NOTICE OF APPEAL RI GHTS4 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 decisio n. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights describ ed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one appli es to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice o f 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. 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 decis ion before you do, then you must 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 disa bling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, 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 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 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 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.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 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 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any co urt of 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 whistlebl ower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DUNN_ORLANDIS_M_CH_0752_16_0505_I_1_FINAL_ORDER_2001367.pdf	2023-02-09	null	CH-0752	NP
3,582	https://www.mspb.gov/decisions/nonprecedential/WATANABE_COLIN_S_SF_0752_21_0264_I_1_FINAL_ORDER_2001380.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD COLIN S. WATANABE, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER SF-0752 -21-0264 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Elbridge Z. Smith , Honolulu, Hawaii, for the appellant. Bosko Petricevic , Schofield Barracks, Hawaii, for the agency. Patsy M. Takemura , Honolulu, Hawaii, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. In his petition, the appellant argues that the agency failed to prove the charge, the administrative judge erred in making credibility 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 determinations, the penalty of removal was excessive, and the deciding official failed to properly consider all of the factors relevant to the penalty determination . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute o r regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion , and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, sec tion 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for grantin g the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 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 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 adv ise which option is most appropriate in any matter. 3 immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 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. 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 a ction that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action wi th an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC ’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board ’s disposition of 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). 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 circui t court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 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	WATANABE_COLIN_S_SF_0752_21_0264_I_1_FINAL_ORDER_2001380.pdf	2023-02-09	null	SF-0752	NP
3,583	https://www.mspb.gov/decisions/nonprecedential/GOMEZ_MICHAEL_AT_0752_21_0638_I_1_FINAL_ORDER_2001386.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL GOMEZ, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER AT-0752 -21-0638 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bobby R. Devadoss , Esquire, McRae Cleaveland , Esquire, and Michael I. Sheeter , Esquire, Dallas, Texas, for the appellant. Mikell M. Henderson , Glynco, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal for charges of failure to follow the agency’s fraternization policy and lack of candor . On petition for review, the appellant argues that the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative judge erred in sustaining the lack of candor charge and in finding that the agency established a nexus between his misconduct and the efficiency of the service and that the penalty of removal was reasonable.2 Petition for Review (PFR) File, Tab 1 at 8-20. He also challenges the administrative judge’s finding that he failed to prove his affirmative defense of reprisal for prior equal employment opportunity activity. Id. at 20 -25. 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 and AFFIRM the initial decision, w hich is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b). 2 Although not specifically contested by the appellant on review, we have considered the administrative judge’s findings regarding the first charge and find no reas on to disturb those findings. 3 In finding that the agency proved the lack of candor charge by preponderant evidence, the administrative judge relied, in part, on credibility determinations of testimony from video recorded interviews with the agency’s Offi ce of Personnel Responsibility, which were made part of the record below. Initial Appeal File, Tab 41, Initial Decision at 4-12; Tabs 12 -13. The appellant asserts that these credibility determinations are not entitled to deference because there was no he aring in this matter, and he challenges the administrative judge’s finding that the agency proved this charge. PFR File, Tab 1 at 8-16. The appellant is correct that, when an administrative judge’s findings are not based on the observation of a witness ’s demeanor during a hearing before the Board, the Board is free to re -weigh the evidence and substitute its own judgment on credibility issues . See Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2022); 3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how co urts will rule regarding which cases fall within their jurisdiction. If you wish to seek 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 question s about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). Christopher v. Department of the Army , 107 M.S.P.R. 580, ¶ 16 (2008) , aff’d 299 F. App’x 964 (Fed. Cir. 2008) . However, after careful consideration of the appellant’s arguments on review and careful evaluation of the record, we ultimately agree with the administrative judge’s finding that the agency prove d the lack of candor charge by preponderant evidence and do not find it necessary to disturb her credibility determinations. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in fin al decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your 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 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 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 an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in 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). 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 before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jur isdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U. S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GOMEZ_MICHAEL_AT_0752_21_0638_I_1_FINAL_ORDER_2001386.pdf	2023-02-09	null	AT-0752	NP
3,584	https://www.mspb.gov/decisions/nonprecedential/FARGNOLI_DAVID_A_DC_0752_15_0266_B_1_FINAL_ORDER_2001465.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID A. FARGNOLI, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DC-0752 -15-0266 -B-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lawrence Berger , Esquire, Glen Cove, New York, for the appellant. Adam Chandler , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL OR DER ¶1 The appellant has filed a petition for review of the remand initial decision, which sustained his removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of materia l fact; the initial decision is based on an erroneous interpretation of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 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 remand initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Prior to his entry on duty as a Criminal Investigator in the agency’s Bureau of Industry and Security, the appellant previously had been employed by the Department of Lab or (DOL) , Office of Inspector General (OIG). The agency removed him on the charges of unauthorized possession of equipment, conduct unbecoming a Law Enforcement Officer (four specifications), and lack of candor (three specifications). Fargnoli v. Departm ent of Justice , MSPB Docket No. DC- 0752 -15-0266 -I-1, Initial Appeal File (IAF), Tab 5 at 39 -54.2 The charged misconduct generally centered on a shotgun , which came into the appellant’s possession when he worked at DOL , and his possessing that shotgun and another personal weapon during his employment at the agency, as well as sworn statements he made when interviewed about these matters. ¶3 On appeal, and after a hearing, the administrative judge sustained all three charg es, although he did not sustain specification 4 of the conduct unbecoming 2 The deciding official found that the evidence did not support the first three of the six spec ifications set forth in the notice of proposed removal under the lack of candor charge. IAF, Tab 5 at 45 -46. 3 charge. IAF, Tab 19, Initial Decision (ID) at 3 -28. He further found that the agency established that a nexus existed between the sustained misconduct and the efficiency of the ser vice and that the penalty of removal was reasonable. ID at 29-31. ¶4 On the appellant’s petition for review, the Board found that, although the administrative judge did not correctly construe the unauthorized possession charge, it was still sustained.3 Farg noli v. Department of Commerce , 123 M.S.P.R. 330 , ¶¶ 6-11 (2016). Of the three remaining specifications under the conduct unbeco ming charge, the Board sustained only the first two but found that they were sufficient to sustain that charge. Id., ¶¶ 12-15. The Board then found that the administrative judge did not fully analyze the lack of ca ndor charge because, although he determi ned that the appellant ’s statements described in specifications 4, 5, and 6 were not true, he made no findings as to whether the “element of deception” was present; that is, whether the appellant gave incorrect or incomplete information and did so knowingl y. Id., ¶¶ 16-18 (citing Ludlum v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002) and Rhee v. Department of the Treasury , 117 M.S.P.R. 640 , ¶ 11 (2012), overruled in part on other grounds by Savage v. Department of the Army , 122 M.S.P.R. 612 (2015)). In remanding the case, the Board directed the administrative judge to reanalyze the lack of candor charge and to make a new finding as to whether the sustained misconduct warrants removal.4 Fargnoli , 123 M.S.P.R. 330 , ¶ 18. 3 The appellant states on review that he “reserves for further appeal, if the removal is sustained by the Board, the Board’s conclusion that Reaso n 1 (‘Unauthorized Possession of Equipment’) was sustained.” Fargnoli v. Department of Justice , MSPB Docket No. DC-0752 -15-0266 -B-1, Remand Petition for Review (RPFR) File, Tab 5 at 6 n.1. That finding by the Board, however, is not subject to further adm inistrative review. 4 The Board also directed the administrative judge, on remand, to consider and address as appropriate the appellant’s claim, raised below, that the agency violated his due process rights. Fargnoli , 123 M.S.P.R. 330 , ¶ 18 n.5. The administrative judge did so, finding that the appellant did not present preponderant evidence that the agency failed to afford him the due process to which he was entitled. Fargnoli v. Department of 4 ¶5 On remand, the administrative judge again affirmed the agency’s action. Fargnoli v. Department of Justice , MSPB Docket No. DC-0752 -15-0266 -B-1, Remand File, Tab 3, Remand Initial Decision (RID) at 9. As directed, he reconsidered the three specifications under the lack of candor charge. Finding, in all three, that the appellant made false statements and did so knowingly, RID at 3-7, the administrative judge sustained that charge , RID at 7. Having found that all three charges remained sustained, the administrative judge further found unchanged hi s earlier findings that the agency’s action promoted the efficiency of the service and that the removal penalty was reasonable. RID at 8. ¶6 The appellant has filed a petition for review of the remand initial decision , Fargnoli v. Department of Justice , MSPB Docket No. DC-0752 -15-0266 -B-1, Remand Petition for Review ( RPFR ) File, Tab 5, to which the agency has responded, RPFR File, Tab 7, and the appellant has filed a reply, RPFR File, Tab 8. ANALYSIS ¶7 In specification 4 of the lack of candor charge, the agency asserted that, in a sworn interview, when the appellant was asked why he did not return the shotgun, he stated that “[he] intended to” and that when asked why he kept the shotgun after leaving DOL, he stated that “[his] intent was to T&E [test and evaluat e] it and present the package to [his current employer].” The agency contended that these statements evidenced a lack of candor on the appellant’s part because they were not supported by the record evidence. IAF, Tab 5 at 273. ¶8 In finding that the appellant’s statements in this specification exhibited a lack of candor, the administrative judge first repeated the findings that he had earlier made that, based on the record as a whole, the appellant’s explanation Justice , MSPB Docket No. DC-0752 -15-0266 -B-1, Remand File, Tab 3, Remand Initial Decision at 7 -8. Because the appellant has not challenged that finding o n petition for review, RPFR File, Tab 1, we will not consider it further. 5 made no sense becau se he lacked any authority to evaluate a shotgun or any firearm, he never sought permission from anyone from the agency to conduct an evaluation, he never notified the gun manufacturer that he was no longer “evaluating” the shotgun for DOL but was now “eva luating” it for his current agency, he never told anyone at the agency that he possessed the shotgun, he never produced any report/evaluation of the shotgun, even though he possessed it for 3 years after changing jobs, and such possession would have contin ued indefinitely but for the inadvertent discovery of the shotgun in the appellant’s possession at the time of his vehicle accident , which formed the basis for the conduct unbecoming charge. On this basis, the administrative judge found that he could not credit the appellant’s claim. ID at 24; RID at 4. In the remand initial decision, the administrative judge found that the appellant’s statements evidenced deception. The administrative judge found that they were false and that the appellant knew they we re false when he made them because he could point to no facts to support his claims, thereby demonstrating irrefutably that he had no thought or plan to return the shotgun. RID at 4 -5. The administrative judge again found not credible the appellant’s exp lanation that he intended to return the shotgun, particularly since he possessed the shotgun for 3 years and the possession ended involuntarily. RID at 5. ¶9 The appellant challenges the administrative judge’s findings on review, arguing that the gun manufac turer had no expectation that the shotgun would be returned and never asked for it back and neither did DOL, such that any return of the shotgun was indefinite and open -ended, and rendered the appellant’s decision what to do with the shotgun at some future time a “judgment call.” The appellant further argues that the intent to deceive cannot be shown in the absence of unambiguous instruction as to the timing of the return. RPFR File, Tab 5 at 7-8. ¶10 The appellant disputes the administrative judge’s conclu sion that the statements at issue in this specification were false and that the appellant knew they were false when he made them. However, he has not challenged the 6 underlying facts supporting the administrative judge’s conclusion. Moreover, in making hi s findings, the administrative judge relied on the Board’s decision in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987),5 explaining in detail why he found the appellant’s explanation for his statements to be inherently improbable. RID at 4 -5. The appellant also argues on review that the administrative judge’s credibility determinations were not based on demeanor and theref ore should not be afforded deference. RPFR File, Tab 5 at 11 -12. However, it is well established that when, as here, an administrative judge has heard live testimony, his credibility determinations must be deemed to be at least implicitly based upon the demeanor of the witnesses. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016); Little v. Department of Transportat ion, 112 M.S.P.R. 224, ¶ 4 (2009). The Board must defer to an administrative judge’s credibility determinations when they ar e based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing, and the Board may overturn credibility findings only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Beyond his mere disagreement, the appellant has not provided such reasons , and we discern no reason to reweigh the eviden ce or substitute our assessment of the record evidence for that of the administrative judge. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997). Regarding the appellant’s argument that, because the evidence is unclear as to whether he knew that he should have returned the shotgun on a date certain or believed he could do 5 To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he beli eves, and explain in detail why he found the chosen version more credible, considering such factors as: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement b y the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’ s demeanor. Hillen , 35 M.S.P.R. at 458. 7 so at any time, there can be no finding of an intent to deceive, RPFR File, Tab 5 at 14, there is no requirement of intent in a lack of candor charge, Ludlum , 278 F.3d at 1284 -85. In sum, we find that the administrative judge properly sustained specification 4 of the lack of candor charge. ¶11 In specifi cation 5, the agency asserted that, during a sworn interview, the appellant stated that he received permission from a named Special Agent in Charge from DOL’s OIG to acquire and test the shotgun . IAF, Tab 6 at 273. The agency further asserted, however, t hat the Special Agent in Charge denied ever giving the appellant permission to obtain the shotgun and that, because the Special Agent in Charge had no incentive to misrepresent the truth, his statement was more credible than the appellant’s. Id. ¶12 In find ing that the appellant’s statement exhibited a lack of candor, the administrative judge repeated the findings he had earlier made that the appellant’s statement was not credible because, if it was so, there would have been some type of follow -up or account ability to assure that the testing occurred, but that there was no testing, either at DOL or at the agency. The administrative judge further found that, if the appellant had received such approval from the Special Agent in Charge or anyone with authority, the appellant would have been ethically obligated to complete the authorized activity and that his failure to do so undermined any legitimacy his claim might otherwise have. The administrative judge credited the statement of the Special Agent in Charge t hat he did not know the appellant had acquired the shotgun for any purpose and found therefore that the appellant lacked candor in his response regarding his having received permission from the Special Agent in Charge to obtain the shotgun. ID at 26; RID at 5-6. In the remand initial decision, the administrative judge further found that the appellant’s statement was not an inadvertent mistake but was false, unsupported by any facts, and that he knew it was false in that it was a conscious attempt at decep tion. RID at 6. 8 ¶13 The appellant challenges those findings on review, arguing that, in fact, an Assistant Special Agent in Charge permitted him to borrow the shotgun from the manufacturer and that therefore his statement was not untrue. The appellant conten ds that, to the extent, given the passage of time, he might have been confused about whether it was the Special Agent in Charge or the Assistant Special Agent in Charge who gave him permission to borrow the shotgun, his recollection was in good faith and e videnced no intent to deceive. RPFR File, Tab 3 at 14 -15. In addition, the appellant argues that the Special Agent in Charge did not deny knowing that someone may have informed him that the appellant had obtained the shotgun for training and evaluation. Id. at 9, 14. ¶14 The appellant’s arguments again challenge the administrative judge’s credibility determinations. After hearing the testimony, the administrative judge found not credible the appellant’s statement that the Special Agent in Charge gave him pe rmission to acquire and test the shotgun, finding the statement contradicted by the Special Agent in Charge’s own statement, IAF, Tab 6 at 71, as well as the appellant’s own behavior in not completing any testing of the shotgun over a period of 3 years, Hillen, 35 M.S.P.R. at 458; RID at 6. Because these findings were at least implicitly based on demeanor, and because the appellant has not shown “sufficiently sound” reasons for overturning them, we defer to those findings. See Haebe , 288 F.3d at 1301. Mo reover, as noted, there is no requirement of an intent to deceive in a lack of candor charge. Ludlum , 278 F.3d at 1284 -85. We therefore find that the administrative judge properly sustained specification 5 of the lack of candor charge. ¶15 In specification 6 , the agency asserted that, in a sworn interview, the appellant stated that he felt the shotgun was a “personal assignment,” not assigned to the agency. IAF, Tab 6 at 273 -74. ¶16 In finding that this statement exhibited lack of candor, the administrative judge repeated his earlier findings that the appellant made an internally inconsistent claim by also stating that he acquired the shotgun for testing and 9 evaluation and that his compete failure to conduct any testing, either personally or officially, demonstr ated that his statement was misleading or demonstrably inaccurate. ID at 28. In the remand initial decision, the administrative judge found that the statement was knowingly false, lacking any evidentiary support, and was made to deceive, misdirect, and h ide the truth. RID at 6 -7. ¶17 The appellant challenges the administrative judge’s findings on review, again disputing the administrative judge’s credibility findings, arguing that his belief that the shotgun was not assigned to the agency was sincerely held, even if incorrect, and that it did not establish an intent to deceive. RPFR File, Tab 5 at 16. In making his finding, the administrative judge explained why he found the appellant’s explanation for his statement to be inconsistent with his other stateme nt and with his actions. Hillen , 35 M.S.P.R. at 458; RID at 6 -7. Because these findings were based at least implicitly on demeanor, and because the appellant has not shown “sufficiently sound” reasons for overturning them, we defer to those findings. Haebe , 288 F.3d at 1301. Moreover, as noted, there is no requirement or an intent to deceive in a lack of candor charge. Ludlum , 278 F.3d at 1284 -85. We therefore find that the administrative judge properly sustained specification 6 of the lack of cando r charge and, having sustained all three specifications of the charge, properly sustained the charge itself. ¶18 Other than stating that “[t]he penalty of removal should be mitigated,” the appellant has advanced no reason why the agency’s chosen penalty shou ld not be upheld. RPFR File, Tab 5 at 16. He has not shown error in the administrative judge’s findings that all of the sustained misconduct arose from the appellant’s official duties. RID at 8. When the agency’s charges are sustained, the Board will r eview the agency’s penalty selection only to determine if the agency considered all the relevant factors and exercised management discretion within the tolerable limits of reasonableness. Luongo v. Department of Justice , 95 M.S.P.R. 643, ¶ 6 (2004), aff’d , 123 F. App’x 405 (Fed. Cir. 2005). We agree with the administrative judge that the agency in this case did consider all the 10 relev ant factors , RID at 8; IAF, Tab 5 at 47 -51, Tab 18, Hearing Compact Disc (testimony of the deciding official), and that removal is a reasonable penalty for the sustained misconduct. ¶19 On review, the appellant argues that the Board should apply “ Chevron defer ence,”6 which is generally concerned with issues of statutory construction, to a portion of the deciding official’s testimony. RPFR File, Tab 5 at 12 -13. The appellant did not raise this argument below and has not shown that it is based on new and materi al evidence not previously available despite his due diligence. Therefore we will not considerate it. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). ¶20 Accordingly, we affirm the remand 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 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. 6 Chevron , USA , Inc. v. Natural Resources Defense Council , Inc., 487 U.S. 837 (1984). 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 Please read carefully each of the three main possible choices of review 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 Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 12 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 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 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: 13 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 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.8 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). 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. 14 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circ uit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants be fore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites , which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FARGNOLI_DAVID_A_DC_0752_15_0266_B_1_FINAL_ORDER_2001465.pdf	2023-02-09	null	DC-0752	NP
3,585	https://www.mspb.gov/decisions/nonprecedential/ISAAC_TIFFANY_AT_0752_17_0730_I_1_FINAL_ORDER_2001475.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TIFFANY ISAAC, Appellant, v. DEPARTMENT OF STATE, Agency. DOCKET NUMBER AT-0752 -17-0730 -I-1 DATE: February 9, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tiffany Isaac , Bishopville, South Carolina, pro se. Marianne Perciaccante , Washington, D.C., for the agency. Elizabeth R. Amory , Charleston, South Carolina, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her termination ap peal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error 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 On November 29, 2015, the agency appointed the appellant , a nonpreference eligible, to an excepted -service GS-04 Student Trainee (Passport Specialist) position under the Pathways Internship Experience Program ( IEP), pursuant to 5 C.F.R. § 213.3402 (a), Schedule D . Initial Appeal File (IAF), Tab 4 at 94, 97-98. The appointment was intended to continue through the completion of the appellant’s education and work requirements, and the agency had the option to noncompetitively convert her to a term or permanent competitive service position within 120 days after she successful ly complet ed all program requirements. Id. at 97; 5 C.F.R. § 362. 204(b) (setting forth the circumstances under which an agency may noncompetitively convert a n intern to a term or permanent appointment in the competitive service). Eligibility requirements for the I EP include maintaining a cumulative grade point average (GPA) of at least 2.0, IAF, Tab 4 at 95, and the duration of the appointment is considered a trial 3 period, id. at 97 . Effective July 21, 2017, the agency terminated the appellant for failing to maintain a cumulative GPA of 2.0. Id. at 129. ¶3 The appellant filed a Board appeal challenging her termination and requested a hearing. IAF, Tab 1. The agency filed a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 5. The administrative judge issued a show cause order in which she set forth the elements of proof required to establish that the appellant was an “employee” with Board appeal rights under 5 U.S.C. § 7511 (a) and ordered the appellant to file evidence and argu ment on the jurisdictional issue. IAF, Tab 7. In response, the appellant stated that agency officials had discriminated against her2 and had made “slanderous” statements about her ; however, she did not address the jurisdictional issue. IAF, Tab 8. ¶4 Witho ut holding the requested hearing, the administrative judge issued an initial decision that dismissed the appeal for lack of jurisdiction, finding that the appellant was serving in a probationary period at the time of her termination and that there wa s nothing to sugg est that she otherwise qualified as an employee within the meaning of 5 U.S.C. § 7511 (a). IAF, Tab 9, Initial Decision (ID) at 3. The appellant has filed a petition for review, the agency has filed a response to the petition, and the appellant has filed a reply to the agency’s response. Petition for Review (PFR) File, Tabs 1, 3 -4. ANALYSIS The administrative judge correctly dismissed this appeal for lack of jurisdiction. ¶5 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). An appellant bears the burden of proving by preponderant evidence that her appeal is wi thin the Board’s jurisdiction. 5 C.F.R. § 1201.56 (b)(2)(i). A nonpreference eligible in the excepted service has a statutory right to appeal a termination if she qualifies as an 2 The appellant d id not identify the basis of the alleged discrimination. IAF, Tab 8 . 4 “employee” within the meaning of 5 U.S.C. § 7511 (a)(1)(C). Subsection (C ) defines an employee as an individual who : (1) is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or (2) has completed 2 years of current continuous service in the same or similar pos itions in an Executive agency under other than a temporary appointment limited to 2 years or less. 5 U.S.C. § 7511 (a)(1)(C)(i) -(ii); see Van Wersch v. Department of Health and Human Services , 197 F.3d 1144 , 1151 (Fed. Cir. 1999) ( holding that subsections (C)(i) and (C)(ii) of 5 U.S.C. § 7511 (a)(1) are alternative means of establishing jurisdiction) . ¶6 It is undisputed that the appellant was appointed to the excepted service , is not preference eligible , and did not meet the requirements of either 5 U.S.C. § 7511 (a)(1)(C)(i) or (ii). Therefore, the administrative judge correc tly found that the appellant failed to nonfrivolously allege facts that, if proven, would establish that she qualified as an “employee” with adverse action appeal rights under 5 U.S.C. § 7511 (a)(1)(C). ¶7 For the first time on review, the appellant raises a claim of marital status discrimination and asserts that her marital status contributed to her termination . PFR File, Tab 1. In its decision letter effecting the appellant’s termination, the agency erroneously notified the appellant that she could appeal her termi nation to the Board if she believed that it was motivated by partisan political reasons or marital status , or if the termination was based on preappointment reasons and the agency failed to follow proper procedures. IAF, Tab 4 at 129. Under 5 C.F.R. § 315.806 , which applies to probationary employees in the competitive service, an appellant may establish jurisdiction over her termination appeal by showing that marital status or partisan p olitical reasons account for the termination, or that the action was procedurally improper . Because the appellant’s appointment was in the excepted servic e, however, she cannot avail her self of the righ ts accorded only to competitive -service employees. See Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210 , ¶ 13 (holding that 5 C.F.R. § 315.806 applies only to 5 individuals in the competitive service) . Accordingly, we do not consider the appellant’s claim that she was subject ed to marital status discrimination.3 ¶8 To the extent that the appellant reasserts her claim of unspecified discrimination on review , we also do not consider that claim. Absent an otherwise appealable action, the Board cannot consider the appellant’s allegations of discrimination. See Wren v . Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding that allegations of discrimination are not an indep endent source of appella te jurisdiction, and an underlying appeal within the Board’s jurisdiction must first be presented for such allegations to be considered), aff’d , 681 F.2d 867 , 871-73 (D.C. Cir. 1982). ¶9 Finally, the appellant argues on review that the agency improperly identified her appointment date as November 29, 2017, and she asserts that this error demonstrates a lack of “due diligence.” PFR File, Tab 1. Contrary to the appellan t’s assertion , the record shows that the agency correctly identified the date of her appointment as November 29, 2015; however, the administrative judge incorrectly stated that the appellant was appointed on November 29, 2017, in the initial decision. ID at 2; IAF, Tab 4 at 9, 97. This typographical error does not warrant review of the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) ( explaining that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). In sum, the administrative judge correctly found that the appellant failed to nonfrivolously allege that the Board has jurisdiction over this appeal. Accordingly, we find that the administrative judge properly dism issed the a ppeal for lack of jurisdiction. 3 We also decline to address the appellant’s marital status discrimination claim because she has not shown that it is based on new and material evidence that was unavailable despite her due diligence when the record closed. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115 (d). 6 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 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. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 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 represe ntative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 8 to waiver of any require ment of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative r eceives 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 requ est for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judici al review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 9 disposition of alle gations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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. 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 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. 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	ISAAC_TIFFANY_AT_0752_17_0730_I_1_FINAL_ORDER_2001475.pdf	2023-02-09	null	AT-0752	NP
3,586	https://www.mspb.gov/decisions/nonprecedential/MOSLEY_DAWSON_JAVANA_DC_1221_21_0339_W_1_REMAND_ORDER_2000724.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAVANA MOSLEY -DAWSON, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-1221 -21-0339 -W-1 DATE: February 8, 2023 THIS ORDER IS NONPRECEDENTIAL1 James Barrett Kelly , Washington, D.C., for the appellant. Everett F. Yates , Esquire, Fort Sam Houston, Texas, for the agency. Jennifer Giambastiani , Falls Church, Virginia, for the agency. Sheri S. Shilling , Esquire, and Dalton MacDonald , Esquire, Washington, D.C., for amicus curiae , Office of Special Counsel. BEFORE Cathy A. Harris, Vice Chair man Raymond A. Limon, Member Tristan L. Leavitt, 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 REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction.2 For the reasons discussed below, we GRANT the a ppellant’s petition for review, REVERSE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW The administrative jud ge erred in applying collateral estop pel. ¶2 The appellant argues on review that the administrative judge erred in applying the doctrine of collateral estoppel to dispose of disclosure (2). We agree. Collateral e stoppel, or issue preclusion, is appropriate when : (1) the issue is identical to that involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination of the issue in the prior action was necessary to the resul ting judgment; and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action, either as a party to the earlier action or as one whose interests were otherwise fully represented in that a ction. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Department of Homeland Security , 878 F.3d 1320 (Fed. Cir. 2017). Here, none of these criteria is satisfied, as the matter was never adjudicated and there was no prior action, such as an IRA appeal, to which the doctrine of collateral estoppel might apply. Whether the appellant raised disclosure (2) in her January 2017 OSC complaint is of no consequence. Thus, we agree that the administrative judge erred in applying t he doctrine of collateral estoppel to dispose of disclosure (2). 2 The Office of Special Counsel (OSC) filed an unsolicited amicus brief pursuant to 5 C.F.R. § 1201.34 (e). We grant OSC’s reque st to file the brief . See 5 C.F.R. § 1201.34 (e)(3). 3 The appellant exhausted her remedies with OSC regarding her claim of retaliation for disclosure (2), and she nonfrivolously alleged that disclosure (2) was protected under 5 U.S.C. § 2302 (b)(8) and was a contributing factor in the personnel actions at issue . ¶3 Having found that the administrative judge erred in disposing of disclosure (2) on coll ateral estoppel grounds, we now conside r whether the appellant established IRA jurisdiction with regard to that disclosure. To establish jurisdiction over an IRA appeal, an appellant must show by preponderant evidence that she exhausted her administrative remedies before OSC and make nonfrivolous allegations that : (1) she made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take , or threaten to take or fail to take, a personnel action as defined unde r 5 U.S.C. § 2302 (a). Salerno v. Department of the Interior , 123 M.S.P. R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1) . The Board’s regulations define a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s).3 As the U.S. Court of Appeals for the Federal Circuit recently put it : “[T]he question of whether the appellant has non - frivolously alleged protected disclosures [or activities] that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1369 (Fed. 3 The regulation further provides that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an indiv idual makes an allegation that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4 (s). Pro forma allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 6 (2016), 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. 4 Cir. 2020).4 Any doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. Cassidy v. Department of Justice , 118 M.S.P.R. 74, ¶ 4 (2012). ¶4 Contrary to the agency’s assertions on review, we agree with the appellant that she exhausted her remedies with OSC regarding her claim of retaliat ion for disclosure (2). The substantive requirement s of exhaustion are met when an appellant has provided OSC with sufficient basis t o pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10 (2022) (citing n umerous cases) . An appe llant may demonstrate exhaustion through her initial OSC complaint or correspondence with OSC. Id. In the alternative, exhaustion may be proved th rough other sufficientl y reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in the Board appeal. Id. (citing Delgado v. Merit Systems Protection Board , 880 F.3d 913 , 916 (7th Cir. 2018)). Here, OSC’s closure letter in the second complaint refers to the appellant’s allegation that, in February 2017, Dr. Martin refused her request to m eet and discuss her performance standards. Initial Appeal File (IAF), Tab 6 at 48. In addition, the declaration the appellant submitted to OSC in support of her complaint identifies disclosure (2) as one of her alleged protected disclosures , specifically, a disclosure of what she reasonably belie ved to be a violation of law, rule, or regulation. Id. at 18. Accordingly, we conclude that the exhaustion requirement is sati sfied with regard to disclosure (2). 4 As a result of changes initiated by the Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199), extended for three years (Pub. L. No. 113-70), and eventually made permanent (Pub. L. No. 115-195), appellants may file p etitions 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). Thus, we must consider all issues in such cases with the view that the appellant ultimately may seek review of this decision before any circuit court of appeals of competent jurisdiction. 5 ¶5 We further find the appellant has made a nonfrivolous allegation that disclosure (2) was a protected disclosure of a violation of law, rule, or regulation. The appellant explains that when she informed Dr. Martin that she had not been issued her performance standards, she disclosed what she believed to be a violation of certain provisions of Department of Defense Instruction 1400.25, Volume 431. See IAF, Tab 6 at 11. The specific provisions identified by the appellant provid e, in relevant part, that written performance plans (including performance standards) for each employee must be developed and approved by supervisors, normally within 30 calendar days of the beginning of the performance cycle, and communicated to the emplo yee. Id. at 11, 30 -32. We conclude that the appellant’s allegations, taken as true, could support a conclusion that she reasonably believed disclosure (2) evidenced a violation of that rule. ¶6 The next question to be decided is whether the appellant nonf rivolously alleged that disclosure (2) was a contributing factor in the agency’s decision to take a personnel action against her.5 To satisfy the contributing factor criterion at the jurisdictional stage, an appellant need only make a nonfrivolous allegat ion that the fact o f, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Chambers , 2022 MSPB 8 , ¶ 14. One way to satisfy that requirement is the knowle dge/timing test, under which an employee may establish that the disclosure or activity was a contributing factor in a personnel action through circumstantial evide nce, such as evidence that the official taking the personnel action knew of the disclosure or activity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contri buting factor in the personnel action. Id., ¶ 15; see 5 U.S.C. § 1221 (e)(1). 5 At least some of the alleged retaliatory actions by Dr. Martin qualify as personnel actions for purposes of an IRA appeal. See, e.g. , 5 U.S.C. § 2302(a)(viii) (defining “personnel action” to include a performance evaluation). 6 In this case, the knowledge component of the knowledge/timing test is satisfied, as the appellant made disclosure (2) directly to Dr. Martin . Furthermore, the alleged retaliatory actions by Dr. Martin took place within 2 years of the disclosure, which is sufficiently close in time to satisfy the t iming component . See Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015). Thus, the appellant succeeded in making a nonfrivo lous allegation that disclosure (2) was a contributing fac tor in the personnel actions at issue. ¶7 In sum , we conclude that the appellant has established jurisdiction over her IRA appeal with respect to her claim of retaliation for disclosure (2). Accordingly, we remand the appeal for adjudicati on on the merits of that claim, including a hearing if the appellant still desires one. The appellant’s January 2017 OSC complaint constituted protected activity under 5 U.S.C. § 2302 (b)(9)(C) , and the appellant nonfrivolous ly allege d that the activity w as a contributing fac tor in the personnel actions at issue . ¶8 The administrative judge found below that the appellant’s January 2017 OSC compla int, identified as “disclosure” (1), was not a protected disclosure or activity for purposes of establishing IRA j urisdiction. We find that the administrative judge erred on this point and that the January 2017 OSC complaint constituted protected activity under 5 U.S.C. § 2302 (b)(9)(C).6 See 5 U.S.C. § 2302 (b)(9)(C) (prohibiting retaliation for “cooperating with or disclosing information to the Inspector General … or the Special Counsel, in accordance with ap plicable provisions of law”); cf. Special Counsel v. Hathaway , 49 M.S.P.R. 595, 611 -12 (1991) (holding that section 2302(b)(9)(C) covers 6 The administrative judge found that, insof ar as the appellant’s January 2017 OSC complaint was protected activity under section 2302(b)(9), it was not within the Board’s IRA jurisdiction because it was “doubtful” whether the disclosures in the complaint were “made to remedy a violation of 5 U.S.C. § 2302(b)(8).” IAF, Tab 12, Initial Decision at 16. Here, the administrative judge seems to have had in mind the distinction between activity covered under section 2302(b)(9)(A)(i) and activity covered under section 2302(b)(9)(A)(ii). However, protecte d activity under section 2302(b)(9)(C) need not involve an alleged violation of section 2302(b)(8). 7 employee disclosures to the Inspector General that are not covered by section 2302(b)(8)) , recons. denied , 52 M.S.P.R. 375 (1992), aff’d , 981 F.2d 1237 (Fed. Cir. 1992) , and abrogated on other grounds by Special Counsel v. Santella , 65 M.S.P.R. 452, 456 (1994) (recognizing the Board’s error in applying the wrong causal standard) . ¶9 We also find that the appellant ma de a nonfrivolous allegation that her January 2017 OSC complaint was a contributing factor in the personne l actions at issue . In her declaration, the appellant states that Dr. Martin had knowledge of the January 2017 OSC complaint , which , if true, would serve as evidence of contributing factor under the knowledge/timing test. IAF, Tab 6 at 15. Her assertion is based on: (1) the friendship she alleges developed between Dr. Martin and Lieutenant Colonel Martin, against who m she filed the complaint; and (2) a mid -August 2017 conversation with a colleague, who told her that she had been told by another colleague, who in turn worked closely with Dr. Martin, not to share information with the appellant “because [the appellant ] know[s] how to write complaints that get people in trouble.” Id. at 15, 20. While the allegation that Dr. Martin had knowledge of the January 2017 compla int is somewhat speculative, it is also plausible based on the information presented by the appellant , and if true, would satisfy the knowledge component of the knowledge/timing test. Accordingly , we find that the appellant has established jurisdicti on wi th respect to her claim of retaliation for her January 2017 OSC complaint , and remand that claim for adjudication on the merits, including a hearing if the appellant still desires one. 8 ORDER ¶10 For the reasons discussed abo ve, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MOSLEY_DAWSON_JAVANA_DC_1221_21_0339_W_1_REMAND_ORDER_2000724.pdf	2023-02-08	null	DC-1221	NP
3,587	https://www.mspb.gov/decisions/nonprecedential/SHIBA_DORED_CH_1221_16_0285_W_1_FINAL_ORDER_2000791.pdf	UNITED STATES OF AMER ICA MERIT SYSTEMS PROTEC TION BOARD DORED SHIBA, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH-1221 -16-0285 -W-1 DATE: February 8, 2023 THIS ORDER IS NONPRECEDENTIAL1 Christina Abraham , Esquire, Chicago, Illinois, for the appellant. Lynn N. Donley , Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individ ual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 REMAND the case t o the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 In 2003, the appellant voluntarily resigned from his Federal employment with the Social Security Administration for medical reasons and began receiving a Federal Employees Retirement System (FERS) disability retirement annuity in 2004. Initial Appeal File (IAF), Tab 1 at 11, Tab 7 at 2; Shiba v. Department of Homeland Security , MSPB Docket No. CH-0752 -10-0761 -I-1, Initial Appeal File (0761 IAF), Tab 7 at 21. In 2007, he was hired by the Department of Homela nd Security (the agency) but, 2 months later, filed a claim for a workplace injury. 0761 IAF, Tab 6 at 10, Tab 7 at 21. The Office of Workers’ Compensation Programs (OWCP) accepted his injury as compensable, and the agency placed him in a leave without pay (LWOP) status. Id. ¶3 After 3years of being in an LWOP status, the agency removed him based on his unavailability for work. 0761 IAF, Tab 7 at 22, Tab 14, Initial Decision (0761 ID) at 2. He appealed to the Board, and an administrative judge issued an initial decision reversing the appellant’s removal after he produced new medical documents suggesting that he could return to work. 0761 ID at 2, 4. Neither party appealed, and th e initial decision became the Board’s final decision. Following his reinstatement in November 2010, the appellant filed a notice of recurrence with OWCP. Petition for Review (PFR) File, Tab 1 at 5, Tab 3 at 13. It appears that, in response to OWCP’s inq uiry regarding why he believed his prior injury had recurred, the appellant admitted that he had never recovered. PFR File, Tab 3 at 15. Instead, he “pressure[d] [his] physicians into releasing [him] to work” so that he could keep his job. Id. He state d that he had obtained the medical documentation that he submitted in his prior appeal in order to have the Board reverse his termination. Id. 3 ¶4 The appellant alleges that OWCP accepted the recurrence as compensable, and he again went on LWOP. Id. In September 2011, the agency’s Office of Inspector General (OIG) commenced an investigation regarding the appellant. IAF, Tab 8 at 7-8. In August 2014, the agency terminated the appellant, treating him as an at -will reemployed annuitant. IAF, Tab 1 at 7-8. The termination decision was made by a District Director who assumed his position 2 weeks prior to the termination. IAF, Tab 1 at 9; PFR File, Tab 3 at 7, Tab 4 at 6-7. The appellant filed a complaint with the Office of Special Counsel (OSC) alleging reprisal for his workplace injury, his prior Board appeal, a statement he made to his direct supervisor about agency employees being rude to the public, and disclosures he made to his second -line supervisor and a city mayor . IAF, Tab 1 at 4, 22, Tab 7 at 3-5. After the OSC issued a close -out letter, he filed this IRA appeal alleging reprisal for protected activity and disclosures. IAF, Tab 1 at 4, 25. ¶5 The administrative judge notif ied the appellant of his jurisdictional burden and ordered him to submit e vidence and argument on the jurisdictional issue. IAF, Tab 3. After the appellant responded and the agency replied, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID) at 10. She found that the appellant failed to make a nonfrivolous allegation that he engaged in protected activity or that he made protected disclosures that were a contributing factor in the OIG investigation or his termination. ID at 1, 4-8. Specificall y, she found that his alleged workplace injury and statements regarding rude employees were not protected disclosures, and that his prior Board appeal was not a protected activity. ID at 4-8. She found that he nonfrivolously alleged that his disclosures of his ill treatment to a city mayor, and to his supervisor of bribes accepted by agency employees, were protected. ID at 7-8. However, she found that the appellant failed to nonfrivolously allege that the agency officials who 4 initiated the investigation or his termination were aware of his protected disclosures. ID at 9. ¶6 The appellant has petitioned for review. PFR File, Tab 1. He argues that the administrative judge erred in finding that he did not engage in protected activity when he filed his prior Board appeal. Id. at 6-8. Further, he disagrees with her finding that he failed to nonfrivolously allege that the OIG investigation was the result of his protected activities and disclosures. Id. at 9. He also presents new evidence and argument pertai ning to Board jurisdiction over his claim that his termination was in reprisal for a protected disclosure. PFR File, Tab 1 at 9, 28, Tab 4 at 8-10. The agency has responded to the petition for review, and the appellant has replied. PFR File, Tabs 3-4. ¶7 To establish Board jurisdiction over an IRA appeal based on whistleblower reprisal, the appellant must exhaust his administrative remedies before OSC2 and make nonfrivolous allegations of the following : (1) he engaged in whistleblowing activity by makin g a protected disclosure 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 , fail to take , or threaten to take a personnel action as defined by 5 U.S.C. § 2302 (a). Bishop v. Department of Agriculture , 2022 MSPB 28 , ¶ 13. A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s);3 see also Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1368 -69 (Fed. Cir. 2020) .4 2 The administrative judge found that the appellant duly exhausted his claims before the OSC, ID at 2 -4, and the parties do not challenge this finding. We decline to disturb this finding on re view. 3 The regulation further provides that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4 (s). Pro forma allegations are insufficient 5 ¶8 On review, the appellant disag rees with the administrative judge’s finding that his prior Board appeal could not qualify as protected activity because it was: (1) adjudicated prior to the effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 202, 126 Stat. 1465 , 1476; and (2) outside the scope of the predecessor statute.5 ID at 4-5. The appellant argues that his prior Board appeal constitutes protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), regardless of when it was adjudicated, because the District Director’s termination decision was made after the effective date of the WPEA. PFR File, Tab 1 at 6-8, Tab 4 at 7-8. We need not reach this issue, given that section 2302(b)(9)(A)(i) applies only to claims that seek to remedy whistleblowing reprisal, Mudd v. Department of Veterans Affairs , 120 M.S.P .R. 365, ¶ 7 (2013 ), and the appellant’s prior Board appeal contained no whistleblowing reprisal claim, 0761 IAF, Tab 1 at 5; 0761 ID. Therefore, the administrative judge’s conclusion that the appellant’s prior Board appeal was not protected activity is c orrect regardless of whether it is assessed under the WPEA or the predecessor statute.6 to meet the nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 6 (2016), aff’d , 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 . 4 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Ci rcuit 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. 5 The WPEA, which became effective on December 27, 2012, expanded the grounds on which an appellant may file an IRA appeal with the Board. WPEA § 101(b)(1)(A) ; Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629 , ¶ 9 (2014). Under the WPEA, an appellant may file an IRA appeal concerning reprisal based on certain additional classes of protected activity, as defined in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), and (D). See 5 U.S.C. § 1221 (a); Hooker , 120 M.S.P.R. 629 , ¶ 9. 6 On review, t he appellant a lso alleges that he was denied accommodation for his medical restrictions immediately after he was returned to work as a result of his success 6 ¶9 The appellant also reiterates that the OIG investigated him in retaliation for a protected disclosure. PFR File, Tab 1 at 5, 7, 9 . One way of proving the contributi ng factor element is the knowledge/timing test . Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 63. To satisfy the knowledge/timing test, the employee submits evidence showing that the official taking the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Id. We agree with the administrative judge that the appellant failed to make a nonfrivolous allegation under the knowledge/timing test that a protected disclosur e was a contributing factor in the investigation because he merely stated that “someone” in the agency referred him to the OIG for an investigation but did not identify or connect this individual to his protected disclosure. ID at 9; PFR File, Tab 1 at 5, 7, 9 ; IAF, Tab 1 at 22, Tab 7 at 4-5. As noted, i n the context of whistleblowing, the Board has found that an appellant must make specific and detailed allegations; vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard. El v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 6 (2015) , aff’d per curiam , 663 F. App’x 921 (Fed. Cir. 2016) . ¶10 If the appellant fails to satisfy the knowledge/timing test, the Board considers other evidence, such as that pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowin g in his prior Board appeal. PFR File, Tab 1 at 5. However, because the alleged denial of accommodation predates the appellant’s protected discl osure regarding bribery, he cannot meet his burden to nonfrivolously allege jurisdiction. Rumsey v. Department of Justice , 120 M.S.P .R. 259 , ¶ 27 (201 3) (observing that, when alleged personnel actions predate an appellant’s disclosures, the appellant cannot prove contributing factor under any theory). In addition, it does not appear that th e appellant exhausted this claim or raised it below. IAF, Tab 7 at 4-5 & Exhibit B at 6; ID at 4; Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10 (the Board’s jurisdiction in an IRA appeal is limited to issues previously raised before OSC , although an appellant may give a more detailed account of their whistleblowing before the Board than they did to OSC ). 7 was personally directed at the proposing or deciding officials, and whether those individuals had a desire or motive to retaliate against the appellant. Pridgen , 2022 MSPB 31 , ¶ 65. The administrative judge did not analyze those other considerations in determining whether the appellant nonfrivolously alleged that he was subjected to an OIG investigation in reprisal for his pro tected disclosure. Nonetheless, having considered this alternative method of proving contributing factor, we find no basis to disturb the administrative judge’s finding that the Board lacks jurisdiction over this alleged personnel action. The appellant h as failed to allege that any agency official with knowledge of a protected disclosure referred him to the OIG. PFR File, Tab 1 at 5. Without knowledge of the disclosures, the unidentified person who the appellant alleges contacted the OIG cannot have relied on a protected disclosure in doing so , and could not have a desire or motive to retaliate based on a protected disclosure. ¶11 Nevertheless, we find it appropriate to remand this matter, given that the appellant offers new argument and evidence in suppor t of his allegation that the District Director was influenced by the appellant’s second -line supervisor, to whom the appellant alleged he made a protected disclosure regarding bribery.7 PFR File, Tab 1 at 9, 17, 28. The agency argues that the evidence of fered by the appellant is not new within the meaning of 5 C.F.R. § 1201.115 (d) because it was available to him months before the issuance of the initial decision and could have been raised below. PFR File, Tab 3 at 8. The agency is correct that the Board generally will not consider an argument raised for the first time in a petiti on for review absent a showing that it is based on new and material evidence not previou sly available despite the party’ s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) . However, because the evidence is 7 Specifically, he points to the District Director’s resp onse to an interrogatory served during the appellant’s equal employment opportunity proceeding, in which the District Director stated that he “consulted” with the second -line supervisor in connection with the appellant’s termination. PFR File, Tab 1 at 28. 8 material to the issue of Board jurisdiction, a matter that can be raised at any time during the Board’s proceedings, we will consider the appellant’s new argument and evidence on review. Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016). ¶12 As pertinent here, an appellant may esta blish an official’s constructive knowledge of his disclosure by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 15 (2016 ). The appellant has offered evidence of, and asserted that, his protected disclosure regarding bribery was a contributing factor because the deciding official taking the action might have had constructive knowledge of the disclosure. Therefore, we find that he has made a nonfrivolous allegation of Board jurisdiction , id., ¶ 16, and we remand this appeal for adjudication on the merits of that issue. ¶13 Should the appellant prevail on remand, however, it appears that he may not be entitled to back pay or reinstatement. His employment status as a reemployed annuitant and, consequently, an at -will employee, was n either litigated below nor raised in his prior Board appeal, in which his removal was reversed.8 0761 ID; PFR File, Tab 3 at 5; 5 U.S.C. § 3323 (b)(1). If the appellant was a reemployed annuitant at the time of his prior separation, the Board did not have jurisdiction to order his reinstatement in his earlier chapter 75 appeal. See McDonald v. Mabee , 243 U.S. 90 (1917) (finding that a civil judgment issued by a court that lacked personal jurisdiction over the defendant was void) ; Garza v. Departm ent of the Navy , 119 M.S.P.R. 91 , ¶ 9 (2012) (finding that the Board lacks jurisdiction over 8 The appellant alleges for the first time on review that he stopped being a reemployed annuitant in 2009. Compare PFR File, Tab 4 at 5 (arguing that, once the appellant cancelled his disability retirement benefits, he was no longer an at -will employee), with IAF, Tab 1 at 25, Tab 7 at 2 (alleging below and in his OSC complaint that the appellant has remained a reemployed annuitant thr oughout his employment with the agency). 9 the separation of a FERS reemployed annui tant). Further, the initial decision in the prior Board appeal might be invalid as having been obtained by fraud on the Board, given that the administrative judge in that appeal premised her determination on medical documents that the appellant may have k nown falsely stated he could return to work as perhaps evidenced by his acknowledgment that he “pressure[d] [his] physicians into releasing [him] to work.” 0761 ID at 2; PFR File, Tab 3 at 13-15; see Fed. R. Civ. Pro. 60(d)(3) (empowering Federal courts t o “set aside” judgments “for fraud on the court”); see also Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 27 (2017) (ob serving that the Board may look to the Federal Rules of Civil Procedure as nonbinding guidance) . ¶14 Because the issues of jurisdiction and fraud on the Board in the prior Board appeal may affect whether the appellant is eligible for reinstatement or back pa y in this IRA appeal, the administrative judge should develop the record as needed to determine the appropriate scope of corrective action in the event that the appellant prevails. ORDER ¶15 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order.9 FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 9 The remand initial decision will incorporate the findings from this order and include a notice of appeal rights for all claims raised by the appellant.	SHIBA_DORED_CH_1221_16_0285_W_1_FINAL_ORDER_2000791.pdf	2023-02-08	null	CH-1221	NP
3,588	https://www.mspb.gov/decisions/nonprecedential/KRIEGER_JEFFREY_CH_1221_19_0444_W_1_FINAL_ORDER_2000830.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JEFFREY KRIEGER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-1221 -19-0444 -W-1 DATE: February 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mark G. Hall , Louisville, Kentucky, for the appellant. Lesa Leonard Byrum , Fort Knox, Kentucky, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 22. 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 re view, the parties submitted a document entitled “ NEGOTIATED SETTLEMENT AGREEMENT” signed and dated by the appellant on September 29, 2022, and signed and dated by the agency on October 3, 2022. PFR File, Tab 5, 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 en tered 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 Manage ment , 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 a ny 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 5, at 6. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is la wful 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, secti on 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 m ay 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 te rms 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 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 forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is mo st 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 th e law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main po ssible choices of review below to decide which one applies to your particular case. If 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 revie w in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U. S. Court of Appeals for the Federal Circuit, you may visit our website at http://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 5 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 thro ugh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your d iscrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no 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 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 releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	KRIEGER_JEFFREY_CH_1221_19_0444_W_1_FINAL_ORDER_2000830.pdf	2023-02-08	null	CH-1221	NP
3,589	https://www.mspb.gov/decisions/nonprecedential/GOLDROSEN_MICHAEL_DC_0752_18_0222_I_1_FINAL_ORDER_2000864.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL GOLDROSEN, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DC-0752 -18-0222 -I-1 DATE: February 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael Kator , Esquire, Washington, D.C., for the appellant. Sara M. Klayton , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Vice Chairman Harris recused herself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied relief in his indefinite suspension appeal . On petition for review, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required 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 appellant argues that his appeal is not moot and that the administrative judge erred by finding that he failed to prove his affirmative defense of discrimination . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this 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 clarify that the appeal is DISMISSED as moot, we AF FIRM the initial decision. NOTICE OF APPEAL RIG HTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.1 13. You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with wh ich to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appro priate for your situation and the rights described below do not represent a statement of how courts will rule 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 regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law ap plicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible cho ices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in gener al. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 4 Board neither endorses the servic es provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected b y an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil act ion with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this d ecision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of f ees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 5 with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and you wish to challenge the Board’s rulings on your whistleblower claims only, excluding all other issues , then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issua nce 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 co urt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	GOLDROSEN_MICHAEL_DC_0752_18_0222_I_1_FINAL_ORDER_2000864.pdf	2023-02-08	null	DC-0752	NP
3,590	https://www.mspb.gov/decisions/nonprecedential/FREEMAN_CHRISTOPHER_E_AT_3330_16_0607_I_1_REMAND_ORDER_2000886.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER E. FREEM AN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-3330 -16-0607 -I-1 DATE: February 8, 2023 THIS ORDER IS NONPRECEDENTIAL1 Christopher E. Freeman , Decatur, Georgia, pro se. Amee Patel , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDE R ¶1 The appellant has filed a petition for review of the initial decision, which granted his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA) . For the reasons discusse d 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 REMAND the case to the regional office for further adjudication in accordance with this Order . BACKGROUND ¶2 The appellant is a disability annuitant who was employed by the agency prior to his retirement effective June 30, 2012. Initial Appeal File (IAF), Tab 1 at 1, 7. He filed this appeal alleging that the agency denied him the opportunity to compete for, and failed to reinstate him in , a position for which he applied. Id. at 3-4; IAF, Tab 5 at 4 -7. The Standard Form 50 attached to his appeal shows that he is a 5 -point preference -eligible veteran with career -conditional tenure status. IAF, Tab 1 at 7. The administrative judge processed the appeal as a request for corrective action under VEOA based upon a potential violation of the appellant’s right to compete for a position under 5 U.S.C. § 3304 (f)(1). IAF, Tab 9. Based on the parties’ written submissions, th e administrative j udge issued an initial decision , finding that the appellant had been denied the right to comp ete under 5 U.S.C. § 3304 (f)(1). IAF, Tab 15, Initial Decision (ID) at 3 -4.2 He grante d corrective action under VEO A and order ed the agency to reconstruct the selection process. ID at 4-5. The agency claims to have completed that process. Petition for Review (PFR) File, Tab 3 at 5. The appellant was not appointed to a position a s a result of the reconstructed proce ss, and he filed this petition for review. Id.; PFR File, Tab 1. ANALYSIS ¶3 In his petition for review, the appellant argues that the administrative judge failed to rule on the appeal that he filed, which he characterizes as a complaint that the agency declared him ineligible for reinstatement and failed to consider his applicatio n because he had been retired on disability for more than 3 years. 2 The appellant requested a hearing, but the administrative judge found that he conditionally waived his right to a hearing provided that the administrative judge ordered corrective action as a matter of law. IAF, Tab 1 at 2; ID at 1. 3 PFR File, Tab 1 at 4. The appellant argues that his eligibility for reinstatement is not limited to a 3 -year period as the agency initially informed him because he is a preference -eligibl e veteran with career status. Id. at 4-5. He argues that the administrative judge “introduced the VEOA claim into the case causing [him] to pursue an erroneous and pointless path,” and in the alternative, the administrative judge erred by not informing h im of the necessity of exhausting his remedies with the Department of Labor (DOL) before filing a request with the Board for corrective action under VEOA. Id. ¶4 In response, the agency asserts that the appellant did not seek corrective action under VEOA and did not present any evidence that he had exhausted his remedies with DOL under that statutory scheme.3 PFR File, Tab 3 at 4 -5. Although the agency reports that it complied with the administrative judge’s order to reconstruct the selection process, it qu estions whether the appellant made the requisite showing of the Board’s jurisdiction under VEOA because there was no ev idence in the record that he exhausted his administrative remedies with DOL before filing his Board appeal. Id.; see 5 C.F.R. § 1201.57 (c)(1). ¶5 In his reply to the agency’s response to his petition for review, t he appellant states that DOL rejected his complaint as untimely, without further elaboration . PFR File, Tab 4 at 4. The Board ordered the appellant to submit evidence that he filed a complaint with DOL, including the complaint itself and any correspondence to and from DOL related to the complaint. PFR File, Tab 5. In response, t he appellant submitted a letter fro m DOL informing him that it closed his veterans’ preference complaint because it was untimely filed. PFR File, Tab 6. The letter from DOL is dated November 18, 2016, nearly 2 months after 3 The agency did not assert that its response was a cross -petition for review; however, the Board will consider the agency’s arguments contained in its pleading because t he issue of Board jurisdiction is alwa ys before the Board and may be raised by either party or sua sponte by the Board at any time during a Board proceeding. Scott v. Department of the Air Force , 113 M.S.P.R. 434 , ¶ 5 (2010). 4 the administrative judge issued the initial decision on September 22, 2016. Id. at 4; ID at 1. ¶6 With his submission on review, the appellant has established that he filed a complaint with DOL, which is the first act necessary in establishing the Board’s VEOA jurisdiction. The timing of his DOL complaint is nevertheless unclear. He implies that he filed the complaint only after the administrative judge encouraged him to do so. PFR File, Tab 1 at 5. ¶7 To establish the Board’s VEOA jurisdiction, an appellant must first exhaust his remedies with DOL. The exhaustion requirem ent is satisfied whe n the appellant has filed a written complaint with DOL regarding the alleged violation and either of the following events have occurred: (1) DOL sen t the appellant written notification of the results of its investigation of the complaint; or (2) DOL did not resolve the complaint within 60 days and the appellant notifie d the Secretary of Labor of his intention to appeal to the Board. Burroughs v. Department of Defense , 114 M.S.P.R. 647 , ¶ 7 (2010) , aff’d , 426 F. App’x 897 (Fed. Cir. 2011) ; see 5 U.S.C. § 3330a (a)(2), (d)(1) -(2); 5 C.F.R. § 1208.23 (a). When the Secreta ry of Labor has not resolved a complaint within 60 days, the appellant must provide the Board with evidence that he has complied with the statut ory requirement that he notify the Secretary of his intention to file an appeal. 5 U.S.C. § 3330a (d)(2); Burroughs , 114 M.S.P.R. 647, ¶ 7. ¶8 Because there was no evidence in the record before the administrative judge that the appellant had taken th ese actions, the appellant did not meet his jurisdictional burden. The Board thus lacked jurisdiction over his VEOA claim, and the administrative judge erred in adjudicating it on the merits. The administrative judge’s reliance on VEOA as a potential bas is for jurisdiction is understandable. After all, the appellant invoked his status as a preference -eligible veteran who was denied the opportunity to compete for a position for which the agency was accepting outside applicants. IAF, Tab 1 at 3, Tab 5 at 5, Tab 11 at 4. We must nevertheless vacate the administrative judge’s 5 findings on the merits of the VEOA claim, because it has not yet been established that the Board has jurisdiction over any such claim . See Willingham v. Department of the Navy , 118 M.S.P.R. 21, ¶ 5 (2012) (stating that the Board must determine whether the appellant established jurisdiction over his VEOA appeal before proceeding to the merits of his claim ). ¶9 We remand this appeal to the regional office for further adjudication. Although it is unclear whether the appellant wish es to pursue a request for corrective action under VEOA, his newly submitted closeout letter shows that he clear ly sought to exhaust his remedies with DOL . PFR File, Tab 1 at 4 -5, Tab 4 at 4-5, Tab 6. The administr ative judge must thus provide him with appro priate notice of the other jurisdictional elements. See Bent v. Department of State , 123 M.S.P.R. 304 , ¶¶ 9-11 (2016). DOL found that the appellant’s complaint was untimely. PFR File, Tab 6 at 4. The time limit in 5 U.S.C. § 3330a (a)(2)(A) is not jurisdictional but is similar to a statute of limitations subject to equitable tolling. See Kirkendall v. Department of the Army , 479 F.3d 830 , 836 -44 (Fed. Cir. 2007) (en banc); Bent , 123 M.S.P.R. 304, ¶ 12. The administrative judge also should have the parties address this issue as appropriate on remand. See Bent , 123 M.S.P.R. 304, ¶ 12. ¶10 The appellant ’s pleadings additionally allude to other potential bases for the Board ’s jurisdiction. In his initial filing, for example, he checked the box for alleging a f ailure to restore, reemploy, or reinstate and/or improper restoration, reemployment, or reinstatement . IAF, Tab 1 at 3 . It is unclear from the record whether his disability resulted fr om a compensable injury , and he should thus receive notice regarding his jurisdictional burden in a restoration appeal filed pursuant to 5 C.F.R. § 353.304 . The appellant also invoked the Board’s jurisdiction over suitability actions and employment practices that violate a basic requirement in 5 C.F.R. § 300.103 . IAF, Tab 11 at 4; see 5 C.F.R. §§ 300.104 (a), 731.501. Because the administrative judge summarily decided the VEOA claim in the appellant’s favor, the appellant was never afforded notice of how to 6 establish jurisdi ction under any other theories. The administrative judge must provide the appellant with explicit notice of the applicable jurisdictional issues and an opportunity to establish jurisdiction under the theories he has invoked, although he may not be able to do so .4 See, e.g. , Alvarez v. Department of Homeland Security , 112 M.S.P.R. 434 , ¶ 9 (2009) (citing Burgess v. Merit Systems Pr otection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985)). ORDER ¶11 For the reasons discussed above, we remand this case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 4 The appellant’s prehearing submission cited, among other things, 5 U.S.C. §§ 2301 , 2302(b)(12) , and 5 C.F.R. §§ 315.202 , 315.401 -.403. IAF, Tab 11. Thes e authorities generally are considered not to be independent source s of Board jurisdiction. See, e.g. , Phillips v. General Services Administration , 917 F.2d 1297 , 1298 (Fed. Cir. 1990); Hicks v. Department of the Navy , 33 M.S.P.R. 511 , 512 -13 (1987).	FREEMAN_CHRISTOPHER_E_AT_3330_16_0607_I_1_REMAND_ORDER_2000886.pdf	2023-02-08	null	AT-3330	NP
3,591	https://www.mspb.gov/decisions/nonprecedential/BRADFORD_BARRY_DA_0752_15_0186_I_1_FINAL_ORDER_2000944.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BARRY BRADFORD, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER S DA-0752 -15-0186 -I-1 DA-1221 -15-0155 -W-1 DATE: February 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sarah L. McKinin , Esquire, and Debra D’ Agostino , Esquire, Washington, D.C., for the appellant. James T. Hedgepeth and Charles R. Vaith , Esquire, Joint Base San Antonio -Randolph, Texas, for the a gency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his individual right of action (IRA) appeal and affirmed the agency’s removal action . Generally, we grant petitions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erron eous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis un der section 1201.115 for granting the petition for review. Except as expressly MODIFIED to consider the disparate penalty analysis set forth in Singh v. U.S. Postal Service , 2022 MSPB 15, we AFFIRM the initial decision. DISCUSSION OF ARGUME NTS ON REVIEW ¶2 In a May 21, 2014 decision, t he agency suspended the appellant for 10 days for his alleged failure to carry out assigned work in a reasonable period of time, insubordinate defiance of authority, and refusal to comply with proper orders . Bradford v. Department of the Air Force , MS PB Docket No. DA-0752 -15-0186 - I-1, Initial Appeal File (IAF ), Tab 7 at 317-18, 331 . On October 20, 2014, the agency p roposed to remove him for refusal to follow orders and conduct unbecoming a Federal employee arising from his conduct on May 21, 2014, when his third -level supervisor , Lieutenant Colonel D.L. (D.L.), and another employee , Master Sargent S. S. (S.S.), attempted to deliver the suspension decision to him . Id. at 275 -76. The proposed removal notice alleged that, on May 21, 2014, the appellant twice refused D.L. ’s instructions to meet with him and twice disregarded his orders to remain in place, pus hing past him and departing the room they occupied . Id. at 274. The proposal notice alleged that the appellant 3 made contact with D.L. ’s body the first time he pushed past him to exit the room and made contact with both D.L. ’s and S.S.’s bodies the second time he pushed past them and left the room. Id. The appellant, through counsel, responded orally and in writing to the proposed removal. Id. at 18, 25 -49. The agency imposed the removal , effective December 17, 2014 . Id. at 18-20. ¶3 On Decemb er 23, 2014, the appellant filed an IRA appeal challenging the 10-day suspension . Bradford v. Department of the Air Force , MSPB Docket No. DA-1221 -15-0155 -W-1, Initial Appeal File, Tab 1 . On January 15, 2015, he appealed his removal to the Board, raising affirmative defenses of reprisal for protected whistleblowing disclosures and activity, retaliation for equal employment opportunity (EEO) activity, and harmful procedural error, and arguing that the penalty of removal was unreasonable . IAF, Tab 1 . The administrative judge joined the appeals for processing. IAF, Tab 6 at 1. ¶4 After holding the appellant’s requested hearing, the administrative judge issue d an initial decision denying the appellant’s request for corrective action and affirming the agency’ s removal action . IAF, Tab 30, Initial Decision (ID) . In denying the appellant’s request for corrective action, the administrative judge found that, although the appellant made nonfrivolous allegations sufficient to establish Board jurisdiction over his IRA claim and established his prima facie case by preponderant evidence, the agency showed by clear and convincing evidence that it would have suspended him even absen t his whistleblowing disclosures and activity . ID at 3-5, 13 -19. In affirming the removal, the administrative judge sustained the agency’s two charges, denied the appellant’s affirmative defenses, found nexus between the charges and the efficiency of the service, and concluded that the penalty of removal was reasonable. ID at 6 -12, 19-30. ¶5 The appellant has filed a petition for review of the initial decision, and the agency has responded in opposition to his petition for review. Petition for Review (PFR) File, Tabs 3, 5. On review, the appellant argues that the 4 adminis trative judge erred in denying his affirmative defense of retaliation for protected EEO activity and in finding the removal penalty reasonable.2 PFR File, Tab 3 at 5, 15 -28. The administrative judge correctly found that the penalty of removal was reasonab le for the sustained charges. ¶6 When , as here, all of the agency ’s charges have been sustained, the Board will review an agency -imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion withi n tolerable limits of reasonableness. Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 6 (2013) (citing Douglas v. Veterans Admini stration , 5 M.S.P.R. 280 , 306 (1981) ). In determining whether the selected penalty is reasonable, the Board defer s to the agency ’s discretion in exercising its managerial function of maintaining employee discipline and efficiency. Id. The Board recognizes that its function is not to displace management ’s responsibility or to decide what penalty it would impose, but instead to assu re that management judgment has been properly exercised and that the penalty selected by the agency does not exceed the maximum limits of reasonableness. Id. Thus, the Board will modify a penalty only when it finds that the agency failed to weigh the rel evant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness. Id. ¶7 The administrative judge found that the deciding official considered the relevant factors in imposing the appellant’s removal , including his length of service, his prior discipline, his favorable performance appraisals, the consistency of the penalty, and the seriousness of his misconduct . ID at 27. She agreed with the deciding official’s assessment that the appellant’s conduct —engaging in a 2 The appellant does not challenge the administrative judge’s denial of his request for corrective action in his IRA appeal. PFR File, Tab 3. He also does not challenge the administrative judge’s f indings that the agency proved both charges underlying the removal and established nexus , or her determination that he failed to establish his other affirmative defenses. Id. We discern no reason to disturb these findings. 5 physical altercation with a supervisor, repeatedly failing to follow orders, and unprofessional conduct —was serious and concluded that the removal penalty was not unreasonable. ID at 27, 30. The administrative judge considered the appellant ’s argument that the physical contact with D.L. and S.S. was self-defense, unintentional, and provoked, but found that the appellant failed to prove these alleged mitigating factors. ID at 27 -28. She also considered his disparate penalties claim but foun d that he failed to identify a similarly situated employee who was treated more leniently by the agency. ID at 29. ¶8 On review, the appellant argues that the administrative judge erred in finding that the penalty was reasonable because D.L. and S.S. also engaged in conduct unbecoming on May 21, 2014, but were not disciplined. PFR File, Tab 3 at 20-28. To establish disparate penalties , the appellant must show that the charges and circumstances surrounding the charged beha vior are substantially similar. Archuleta v. Department of the Air Force , 16 M.S.P.R. 404 , 407 (1983) . If an appellant makes such a showing , then the agency must pr ove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Woody v. General Services Administration , 6 M.S.P.R. 486, 488 (1981 ). The administrative judge relied on the standard as set forth in Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 , ¶¶5 -6, 15 (2010) , and Boucher v. U.S. Postal Service , 118 M.S.P.R. 640 , ¶¶20, 24 (2012) , in finding that the appellant did not meet his burden of identifying a similarly situated employee . ID at 29 (citing to cases relying on Lewis and Boucher ). Since the initial decision was issued, the Board has overruled Lewis and subsequent cases to cla rify that, when analyzing a disparate penalty claim, broad similarity between employees is insufficient to establish that they are appropriate comparators, and the relevant inquiry is whether the agency knowingly and unjustifiably treated employees who eng aged in the same or similar offenses differently. Singh , 2022 MSPB 15, ¶ 14. We modify the initial decision accordingly. 6 ¶9 As noted above, the administrative judge found that the appellant failed to trigger the agency’s burden of proving a legitimate reason for the difference in treatment because he failed to identify any similarly situated employee. ID at 29. The appellant argues o n review that D.L. and S.S. are similarly situated comparators who were treated more favorably by the agency because they engaged in “similarly unprofessional behavior and/or behavior that could fall into the category of conduct unbecoming” when, on May 21 , 2014 , they cornered him in the orderly room; blocked his exit; made unwelcome physical contact with his body ; engaged him in the bathroom, where he had an expectation of privacy; and blocked him on the stairs, causing him to “bump” into S.S. PFR File, Tab 3 at 23-24. The appellant further argues that it was unreasonable for D.L. and S.S. to insist on delivering the suspension notice to him that day in person , rather than by email or regular mail, and that their actions are “of [an] equal, if not greate r, level of unprofessionalism ” than the appellant’s reactions to their “extraordinary actions. ” Id. at 25. ¶10 Even if true, t he appellant’s characterization of how the events transpired on May 21, 2014, would not establish that D.L. or S.S. refused to foll ow any, much less multiple, orders , as he did . Furthermore, in sustaining the conduct unbecoming charge, the administrative judge considered the appellant’s characterization of the various interactions with D.L. and S.S. on the day in question —including h is contentions that D.L. initiated the physical contact, that his intentional physical contact was limited to removing D.L. ’s hand from his chest, and that he merely stumbled over D.L. ’s legs or feet on the stairway, causing him to inadvertently come into contact with S.S.—but found these descriptions unpersuasive. ID at 11-12. In so finding , the administrative judge determined that the appellant’s testimony regarding these incidents was less credible than t he testimonies of D.L. and S.S., which were consistent with each other and with contemporaneous statements and corroborated by another witness’s statement. Id. In light of the hearing testimonies and record evidence, 7 the administrative judge found that the appellant’s physical contact with D.L. was more forceful than he described and concluded that the appellant pushed D.L. in the orderly room and pushed S.S. in the stairway. Id. ¶11 The Board must d efer to an administrative judge’ s credibility determinations when they are based, explicit ly 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 doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, the administrative judge made credibility determinations based on hearing testimony, and the appellant has failed to provide any reason on revi ew to overturn these well-reasoned determinations. Rather, he essentially asks us to reweigh the evidence and to reach a different conclusion than that of the administrative judge concerning th e nature of events on May 21, 2014. We decline to do so. 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). Accordingly, given the administrative judge’s finding that the appellant failed to identify any similarly situated employee under the more lenient Lewis standard, we find that , regardless of whether the appellant’s claim was analyzed under the Lewis or Singh standards, the appellant has not met his initial burden on his disparate penalty claim. We further find that , contrary t o the appellant’s argument on review, the agency’s burden to explain any difference in treatment has not been triggered. PFR File, Tab 3 at 25. ¶12 The appellant also argues on review that the penalty should be mitigated because his actions on May 21, 2014, constituted self-defense and because D.L. and S.S. provoked him. Id. at 25 -28. As discussed above, however, the administrative judge considered the appellant’s alternate characterization of the events on May 21, 2014, and concluded that the testimonies of D.L. and S.S. were more credible than the appellant’s testimony. ID at 11-12. She also found no 8 merit to the appellant’s allegations of self -defense or provocation , concluding that the appellant did not present any evidence suggesting that he was subject to any attack by D.L. or by S.S. and that, while it is clear that D.L. and S.S. were persistent in their efforts to meet with him , there was no evidence that they posed any physical threat to him. ID at 27-28. Thus, she concluded that self-defense and provocation were not appropriate mitigating factors. ID at 28. The appellant has failed to provide any basis to disturb these credibility -based findings on review. See Crosby , 74 M.S.P.R. at 105-06. The administrative judge correctly denied the appe llant’s affirmative defense of EEO retaliation in connection with his removal appeal . ¶13 When an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e -16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 51 (2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-25. In determining whether the appellant has met his initial burden to show a motivating factor, the Board must consider all of the evidence together as a whole without sorting evidence into different piles, labeled “direct” or “indirect,” that are evaluated differently. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 , ¶ 36 (2017) . The relevant inquiry here is whether, on the basis of all of the evidence, the appellant has shown by preponderant evidence that discriminatory animus was a motivating factor in his removal . See i d. Such a showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e -16, thereby committing a prohibited personnel practice under 5 U.S.C . § 2302 (b)(1). Savage , 122 M.S.P.R. 612 , ¶ 51. If the appellant meets this initial burden, the Board then will inquire wheth er the agency has shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., that it still would have taken the contested action in the absence of the discriminatory or retaliatory motive. Id. If the Board 9 finds that the agency has made that showing, its violation of 42 U.S.C. § 2000e -16 will not require reversal of the action. Id.3 ¶14 The record reflects that the appellant contacted the EEO office in April 2014, alleging that D.L. made discriminatory remarks during a meeting when he suggested that the appellant sign his name wi th an “X” on the sign -out log. IAF, Tab 25 at 167 -68. During his hearing testimony, D.L. testified that the EEO office notified him on April 15, 2014, that the appellant believed that his suggestion that he sign with an “X” was a reference to slavery or a suggestion that he was illiterate. IAF, Tab 29, Hearing Compact Disc (Mar. 3, 2014) (testimony of D.L.) . He further testified that the EEO investigator told him that the appellant wanted an apology and that he immediately apologized to him in order to make amends. Id. The appellant did not file a formal com plaint of discrimination. IAF, Tab 7 at 14. ¶15 In the initial decision, t he administrative judge found that the appellant’s EEO reprisal affirmative defense failed because, although the appellant engaged in EEO activity and the deciding official was aware of the activity, he did not show by preponderant evidence that his EEO activity was a motivating factor in his removal . ID at 21 -23. In so finding, she noted that, although the disciplinary actions, up to and including the appellant’s removal, closely followed his EEO complaint, they also closely followed his failure to timely complete an assigned task and his other misconduct. Id. She further found the proposing an d deciding official s to be credible witnesses and credited their testimony that they were not motivated by retaliatory animus in proposing or imposing the appellant’s removal . ID at 23. The administrative judge also found that, even if the appellant esta blished the motivating factor element , the agency proved by 3 Because , as discussed below, supra ¶ 16, the ap pellant here failed to prove his initial burden that a prohibited factor played any part in the agency’s decision, we do no t reach the question of whether discrimination or retaliation was a “but-for” cause of that decision . See Pridgen , 2022 MSPB 31 , ¶¶20 -25, 30. 10 preponderant evidence that it still would have removed the appellant in the absence of any retaliatory motive. Id. ¶16 The appellant argues on review that the administrative judge improperly denied h is affirmative defense of EEO reprisal because, even if retaliation for his EEO activity was not the only reason the agency removed him , it was a motivating f actor in the agency’s decision , as evidenced by suspicious timing, “progressive” discipline beginn ing after his EEO activity, dissimilar treatment , and statements by D.L. showing retaliatory intent . PFR File, Tab 3 at 15-20. ¶17 As discussed above, the administrative judge found that, on the basis of all the record evidence and hearing testimony, the ap pellant failed to show that retaliatory animus motivated the agency’s decision to remove him. ID at 21 -23. The appellant’s arguments on review regarding alleged suspicious timing, improper “progressive” discipline, dissimilar treatment, and allegedly ret aliatory statements made by D.L., who was not the proposing or deciding official in the removal action, provide no basis to disturb the administrative judge’s determination that the appellant failed to show motivating fa ctor by preponderant evidence . NOTIC E OF APPEAL RIGHTS4 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropri ate for your situation and 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 notic e, the Board cannot advise which option is most appropriate in any matter. 11 the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law appli cable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 12 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 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 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 Was hington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5 SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no ch allenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circ uit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the 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	BRADFORD_BARRY_DA_0752_15_0186_I_1_FINAL_ORDER_2000944.pdf	2023-02-08	null	S	NP
3,592	https://www.mspb.gov/decisions/nonprecedential/TRABANINO_SALVADOR_DE_0752_21_0132_I_1_FINAL_ORDER_2000952.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SALVADOR TRABANINO, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DE-0752 -21-0132 -I-1 DATE: February 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant. Carolyn D. Jones , Esquire, Williston, Vermont, for the agency. Theresa Sullivan , Phoenix , Arizona , for the agency. BEFORE Cathy A. Harris , Vice Chair man Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal . On petition for review, the appellant , a Deportation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 Officer, asserts that he acted appropriately in his interaction with a detainee , the relative of a close friend, and challenges the administrative judge’s credibility determinations in sustaining the charge of conduct unbecoming . He also reasserts his disparate penalties claim .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 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. Therefore, we DENY the petition for review and AFFIRM the init ial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 2 In support of his disparate penalty claim, the appellant cites Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 , ¶¶ 15-16 (2010). Pet ition for Review File, Tab 3 at 22. The administrative judge relied on the standard set forth in Lewis in finding that the appellant did not meet his burden of showing that the six comparator employees were similarly situated to the appellant. Initial Appeal File, Tab 33, Initial Decision at 12-15. The Board has since overruled Lewis and applied a str icter standard for establishing comparator employees. Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 14. Since the administrative judge found that the appellant failed to establish his disparate treatment claim under the more lenient Lewis standard, his claim also fail s under the standard in Singh . 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 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 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 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. 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.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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color , religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 5 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.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: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, 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 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices d escribed in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 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. 7 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	TRABANINO_SALVADOR_DE_0752_21_0132_I_1_FINAL_ORDER_2000952.pdf	2023-02-08	null	DE-0752	NP
3,593	https://www.mspb.gov/decisions/nonprecedential/LUCAS_CAMBRA_L_SF_0845_13_0413_B_1_FINAL_ORDER_2000996.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CAMBRA L. LUCAS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0845 -13-0413 -B-1 DATE: February 8, 2023 THIS ORDER IS NONPRECEDENTIAL1 Cambra L. Lucas , Ripon, California, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, which affirmed the determination of the Office of Personnel Management (OPM) that the appellant received an overpayment and that she was not 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 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 waiver . For the reasons discussed below, we GRANT the appellant’s petition for review , AFFIRM the remand initial decision in part, REVERSE it in part, and REMAND the matter to OPM for recalculation of the appellant’s overpayment and issuance of a new reconsideration decision . ¶2 In March 2007, OPM approved the appellant’s application for disability retirement under the Federal Employees’ Retirement System (FERS). Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 -I-1, Initial Appeal File (IAF), Tab 10 at 21. At that time, her application had not yet been fully processed, but OPM began providing interim payments. Id. at 21 -22. ¶3 In July 2010, OPM notified the appellant that her interim payments had exceeded that which she actually was due by nearly $90,000. Id. at 14. OPM attributed the overpayment to the appellant’s monthly annuity not being reduced by her health insurance premiums, life insurance premiums, and award of Social Security Administration (SSA) disability benefits. Id. at 9 -10. The appellant immediately requested reconsideration and waiver of the overpayment. Id. at 19-20. OPM issued its reconsideration decision in April 2013, making a minor adjustment to the overpayment total and acknowledging that the appellant was not at fault, but otherwis e affirming its overpayment decision and denying waiver. Id. at 6 -11. ¶4 The appellant sought Board review of OPM’s reconsideration decision. IAF, Tab 1. The administrative judge found that the appellant was overpaid by $89,636. IAF, Tab 15, Initial Deci sion (ID) at 2 -5. Of the $89,636 overpayment, the administrative judge found that $47,736 was caused by the failure to account for the appellant’s SSA benefits, while the remaining $41,900 was caused by a mistake from her employer in reporting the date he r pay ceased, OPM’s failure to make deductions for insurance premiums during the period of interim annuity payments, and OPM’s failure to reduce the interim payments after the first 12 months as required by a change in formula. ID at 6 -7. The administrat ive judge concluded that the appellant was not entitled to waiver for any portion of 3 the overpayment. ID at 6 -11. On review, the Board affirmed the initial decision. Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 - I-1, Final Ord er (May 21, 2014). The appellant then appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit. Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 -L-1, Litigation File, Tab 1. ¶5 The Federal Circuit found that a document OPM submitted for the first time during the petition for review process constituted new and material evidence that the Board should have considered. Lucas v. Office of Personnel Management , 614 F. App’x 491, 495 (Fed. Cir. 2015) (referencing Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 -I-1, Petition for Review (PFR) File, Tab 4 at 6).2 The court further found that the new and material evidence could warrant a different outcome in her case. Id. Therefore, the court remanded the matter for proceedings “limited to the Board’s consideration of whether new and material evidence in the form of [the appellant’s] SSA Response Screen document would render recovery unconscionable under the circumstances.” Id. Accordingly, we remanded the matter to the administrative judge for further adjudication on the limited issue identified by the Federal Circuit. Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 -M-1, Remand Order, ¶ 7 (Dec. 1, 2015). ¶6 On remand, the administrative judge permitted the parties to conduct additional discovery and submit argument and evidence. See Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 -B-1, Remand File (RF), Tabs 3, 7 -8. After doing so, the administ rative judge found that the appellant did not meet her burden of establishing that she was entitled to a waiver 2 The new evidence was an SSA Response Screen pertaining to the appellant, which suggested that OPM was aware of the appellant’s receipt of SSA benefits as early as October 2008. PFR File, Tab 4 at 6; see Lucas , 614 F. App’x at 494 -95. 4 of any portion of her overpayment. RF, Tab 26, Remand Initial Decision (RID) at 4-10. Therefore, she affirmed OPM’s reconsideration decision. RID at 11. The appellant has filed a petition for review. Lucas v. Office of Personnel Management , MSPB Docket No. SF -0845 -13-0413 -B-1, Remand Petition for Review (RPFR) File, Tab 4. OPM has filed a response. RPFR File, Tab 7. ¶7 In her petition, the app ellant first suggests that the administrative judge improperly limited the scope of her appeal. RPFR File, Tab 4 at 5. We disagree. The Federal Circuit specified that it was “remand[ing] for proceedings limited to the Board’s consideration of whether ne w and material evidence in the form of [the appellant’s] SSA Response Screen document would render recovery unconscionable under the circumstances.” Lucas , 614 F. App’x at 495. The administrative judge properly recognized those instructions and adjudicat ed the remanded appeal accordingly, focusing on the portion of the overpayment attributable to the SSA benefits, $47,736, and the October 2008 SSA Response Screen. RF, Tab 8 at 1 -2; RID at 2 -3 n.2; see Fearon v. Office of Personnel Management , 109 M.S.P.R. 606 , ¶ 5 (2008) (observing that, if the appellant is without fault and recovery of some portion, but not all, of the overpayment would be against equity and good conscience, a partial waiver is warranted). ¶8 The appellant also argues, generally, that the administrative judge erred by denying her motion to compel discovery. RPFR File, Tab 4 at 17 -18. Again, we disagree. An adminis trative judge has wide discretion over matters relating to discovery, and the Board will not reverse rulings on discovery matters absent an abuse of discretion. Parker v. Department of Housing and Urban Development , 106 M.S.P.R. 329 , ¶ 9 (2007). Here, the administrative judge properly denied the appellant’s first motion to compel because she had not complied with the Board’s regulations, which require that a motion to compel include “[a] statement that the moving party has discussed or attempted to discuss the anticipated motion with the nonmoving party or nonparty and made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement.” 5 C.F.R. 5 § 1201.73 (c)(1)(iii); see Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 16 (2016); compare RF, Tab 9 at 4, with RF, Tab 15 at 1. ¶9 Subsequently, the appellant filed a second motion to compel, which the administrative judge granted in large part. RF, Tabs 17, 19. The administrative judge did deny the appellant’s requests to depose several OPM employees, finding that she had not shown that the individuals in question would have relevant and material information. RF, Tab 19 at 1 (referencing RF, Tab 17 at 7, 24); see, e.g., Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶¶ 9-10 (2010) (finding no abuse of discretion when an administrative judge denied a motion to compel depositions because they would not have provided information reasona bly calculated to lead to admissible evidence). She also denied the motion to compel documents regarding systems accesses and contacts over a nearly 10 -year period, finding the request overbroad. RF, Tab 19 at 2 -3 (referencing RF, Tab 17 at 6, 21 -22); see, e.g., 5 C.F.R. § 1201.72 (a) (recognizing that, for purposes of discovery, “[r]elevant information includes information that appears reasonably calculated to lead to the discovery of ad missible evidence”). Although the appellant generally argues that the administrative judge erred, she has failed to establish that the administrative judge’s discovery rulings were an abuse of discretion. RPFR File, Tab 4 at 17 -18.3 ¶10 Turning to the merits , the appellant disputes the administrative judge’s finding that recovery of the overpayment would not be unconscionable. Id. 3 The appellant points out that OPM was untimely in submitting responses to her discovery, as required by the admi nistrative judge’s ruling on the motion to compel. RPFR File, Tab 4 at 17; compare RF, Tab 19 (granting the appellant’s motion to compel, in part, and requ iring that OPM respond by April 29, 2016), with RF, Tab 20 (the appellant’s request for sanctions because OPM did not meet the April 29, 2016 deadline), and RF, Tab 23 (OPM’s untimely response to discovery , submitted on May 5, 2016). To the extent that the appellant is once again suggesting that OPM should be subject to sanctions for its untimeliness, we disagree. See Pecard v. Department of Agriculture , 115 M.S.P.R. 31 , ¶ 18 (2010) (recognizing that the denial of sanctions is subject to the abuse of discretion standard of review). 6 at 4-32; see RID at 5 -9. She also disputes the administrative judge’s alternative findings concerning the set -aside rule. RPFR File, Tab 4 at 23 -24; see RID at 9-10. For the reasons described below, we find that the appellant is entitled to a waiver of a portion of her overpayment , the portion attributable to OPM’s 21-month delay in adjusting the appellant’s annuity to account fo r her SSA benefits after getting specific notice of the same . The administrative judge erred in concluding otherwise . ¶11 As recognized throughout this appeal, the appellant bears the burden of establishing entitlement to a waiver of an overpayment by substantial evidence. Boone v. Office of Personnel Management , 119 M.S.P.R . 53 , ¶ 5 (2012). Generally, the recovery of a FERS overpayment should be waived if the recipient is without fault and recovery would be against equity and good conscience. Id.; see 5 U.S.C. § 84 70(b); 5 C.F.R. § 845.301 . Recovery is against equity and good conscience when, as alleged here, recovery would be unconscionable under the circumstances. Boone , 119 M.S.P.R. 53 , ¶ 5; 5 C.F.R. § 845.303 (c). ¶12 The Board has found that the unconsciona bility criterion is a high standard justifying waiver only under exceptional circumstances. Boone , 119 M.S.P.R. 53 , ¶ 9. Because th e concept of unconscionability is ordinarily defined in terms of broad equitable considerations, the Board will consider all relevant factors using a totality -of-the-circumstances approach to determine whether recovery of an annuity overpayment is unconsci onable in a given case. Id. The Board has found that circumstances of unconscionability may include, but are not limited to, cases in which (1) there has been an exceptionally lengthy delay by OPM in adjusting an annuity; (2) OPM failed to respond within a reasonable length of time to an annuitant’s inquiries regarding an overpayment; (3) OPM failed to act expeditiously to adjust an annuity in the face of specific notice;4 or (4) OPM was 4 In its remand decision , the Federal Circuit noted that , if OPM received notice of the appellant’s SSA benefits in 2008, as suggested by the October 2008 SSA Response 7 otherwise grossly negligent in handling the case. Vojas v. Office o f Personnel Management , 115 M.S.P.R. 502 , ¶ 22 (2011). ¶13 Utilizing the aforementioned standards, the administrative judge concluded that the totality of the circumstances did not render recovery of the overpayment unconscionable. RID at 5 -9. Among other things, she found that OPM first approved the appellant’s annuity in March 2007, SSA awarded her disability benefits that same mont h with payments starting in May 2007, and OPM became aware of the SSA benefits in October 2008, but OPM failed to adjust the appellant’s annuity payment, recognize the corresponding overpayment, and finalize the appellant’s retirement annuity, until July 2 010. RID at 5 -7. In addition to those unexplained delays, the administrative judge also considered the subsequent unexplained delay of more than 2 1/2 years before OPM issued its final ruling on the appellant’s request for a waiver .5 RID at 7. She furt her considered OPM’s prior misrepresentations in this appeal, concerning when it first learned of the appellant’s SSA benefits. Id. Nevertheless, the administrative judge determined that the totality of the circumstances did not warrant waiver. RID at 5-10. ¶14 On review, the appellant again argues that OPM’s actions were unconscionable, or even criminal. RPFR File, Tab 4 at 6 -32. In large part, she does so by reasserting that OPM’s information technology systems should have alerted OPM of her SSA benefits in A pril 2007, long before the October 2008 Screen, but failed to implement a corresponding reduction in her annuity payments until 2010, then OPM did not act expeditiously, thereby “undermin[ing] one basis for the Board’s conclusion that the delay was not unconscionable.” Lucas , 614 F. App’x at 495. OPM has since acknowledged that the October 2008 SSA Response Screen demonstrates that it first became aware of the appellant’s approval for SSA benefits at that time. RF, Tab 16 at 4. 5 While considering this delay , the administrative judge mistakenl y identified the dates as August 2007 and April 2010. RID at 7. The proper dates were August 2010 and April 2013. IAF, Tab 10 at 6. 8 date recognized by the administrative judge. Id. at 9 -16. Like the administrative judge, we found no evidence that OPM actually did know of the appellant’s SSA benefits prior to October 2008.6 See RID at 6 -7; comp are PFR File, Tab 4 at 6 (SSA Response Screen dated October 16, 2008, verifying that the appellant was receiving SSA disability), and RF, Tab 16 at 4 (OPM’s admission that it learned of the appellant’s SSA benefits on October 16, 2008), with RF, Tab 22 at 9 (SSA Response Screen dated April 2, 2007, with no information concerning SSA benefits). Accordingly, the record supports only a delay of approximately 21 months between OPM learning of the portion of the overpayment attributable to the appellant’s SSA b enefits and OPM taking action. PFR File, Tab 4 at 6; RF , Tab 16 at 4; IAF, Tab 10 at 14. ¶15 The appellant’s point about the delay between her SSA benefit award , in March 2007, and the date on which we have evidence of OPM learning of those benefits , in Oct ober 2008 , is well taken , nonetheless . OPM has acknowledged that it receives reports from SSA regarding the award of SSA benefits on a monthly basis and that those reports are compared with OPM’s list of annuitants each month. RF, Tab 17 at 12. We have no indication , though, that this monthly comparison captured the appellant’s SSA award between March 2007 and October 2008 . ¶16 The appellant next suggests that OPM’s initial misrepresentations concerning when it learned of her SSA benefits were intentional. E.g., RPFR File, Tab 4 at 26 -27. But, we have no basis for concluding that OPM’s prior misrepresentation was an ything other than an inadvertent mistake, which OPM did eventually remedy by providing relevant evidence . Supra ¶ 5 n.2; PFR File, Tab 1 at 7, Tab 4 at 6. Even so, this was another error on the part of OPM with 6 We recognize t he appellant ’s assertion that she mailed OPM a copy of her SSA award letter. E.g., RPFR File, Tab 4 at 20. It appears, though, that neither the appellant nor OPM have any evidence of OPM receiving the same . 9 respect to the appellant and her annuity. We also find it noteworthy that OPM provided the evidence demonstrating its earlier mistake, unceremoniously, as if the evidence was inconsequential , when the opposite was true . Compare IAF, Hearing Recording (testimony of OPM official , indicating that OPM did not learn of the appellant’s SSA benefits until July 2010 ), with PFR File, Tab 4 at 5 -6 (OPM ’s submi ssion of evidence that suggested OPM had notice of those benefits as of at least October 2008 , without any comment about its significance or the accuracy of OPM’s prior representations ); RF, Tab 16 at 4 (OPM implicitly acknowledging it had previously misrepresen ted when it learned of the appellant’s SSA benefits) . ¶17 The appellant also reasserts that other matters, such as the significant health issues she experienced during her initial disability retirement, are further reason s to wa ive the overpayment. RPFR File, Tab 4 at 19 -22. The Board has recognized that an annuitant’s health may be relevant under the totality -of-the-circumstances approach for determining whether recovery of an overpayment would be unconscionable. See Aguon v. Office of Personnel Management , 42 M.S.P.R. 540, 550 -51 (1989) (remanding an overpayment appeal for an appellant to submit argument and evidence regarding whether his medical condition wa s sufficient, either alone or in combination with other factors, to justify a finding that recovery would be unconscionable ); see also Boone , 119 M.S.P.R. 53 , ¶ 9 ( finding that, in deciding whether recovery of an overpayment was unconscionable, it was appropriate for the Board to consider whether collection of the overpayment would have a negative impact on the appel lant because of her medical conditions, or that those medical conditions require d expenditure of a portion of the installment amount ). Accordingly, the appellant’s treatment for stage 4 cancer, which then triggered severe depression , is relevant to our di sposition . RPFR File, Tab 4 at 19, 22; IAF, Tab 7 at 5 -7. ¶18 To sum up and reiterate the circumstances at hand , OPM approved the appellant’s disability annuity and SSA approved her application for disability 10 benefits in the same month , March 2007 . IAF, Tab 7 at 26-27, Tab 10 at 21. OPM received specific notice that the appellant was receiving SSA benefits in October 2008. RF, Tab 16 at 4, Tab 17 at 12. However , OPM did not act to adjust the appellant’s annuity payments to stop overpaying her until July 20 10. IAF, Tab 7 at 43 -44, Tab 10 at 14. At that point, the appellant requested a waiver , but it took OPM years to issue its final denial . IAF, Tab 10 at 6. Subsequently, t he appellant filed the instant Board appeal , in which OPM erroneously claimed that it learned of the overpayment in July 2010, then unceremonious ly provid ed a document proving otherwise after the administrative judge had already ruled in OPM’s favor . PFR File, Tab 4 at 5 -6. For the most part, these mistakes and delays on the part of OPM have been unexplained. And they all occurred with the backdrop of the appellant struggling with sudden, unexpected, and grave health challenges —the ones that caused her to apply for a FERS di sability annuity and SSA benefits in the first place . E.g., IAF, Tab 7 at 5-7. ¶19 Given the totality of the circumstances, we find that the appellant has proven by substantial evidence that recovery would be unconscionable regarding the portion of overpaymen t attributable to OPM’s failure to account for her SSA benefits when it had documented notice of the same —between October 2008 and July 2010. For that portion of the overpayment, the appellant is without fault and recovery would be against equity and good conscience. The remainder of the overpayment is unfortunate, but the high standard necessary for waiver is not met . ¶20 We recognize , as the administrative judge did, that individuals who know or suspect that they are receiving overpayments are expected to s et aside the amount overpaid pending recoupment and recovery is not against equity and good conscience in the absence of exceptional circumstances, such as extremely egregious errors or delays by OPM. Boone , 119 M.S.P.R. 53 , ¶ 6. But, we disagree with the administrative judge’s conclusion that this set -aside rule is another basis for denyin g the appellant a waiver. See RID at 9 -10. 11 ¶21 The record shows that the appellant suspected OPM owed her more money, not less. In its initial correspondence, OPM did warn the appellant that her annuity would have to be reduced if she were granted SSA bene fits, but it also informed her that its interim payments would be substantially reduced to avoid any overpayment as OPM further processed her annuity. IAF, Tab 7 at 28 -30, 32. These letters from OPM indicated that the interim payments “should be less” th an her actual annuity, while also describ ing it as “rare” that an individual such as the appellant would be overpaid with the interim payments . Id. at 30, 32 . Not expecting hers to be that “rare case,” the appellant mistakenly believed that she was being underpaid . She, therefore, was awaiting a lump sum payment from OPM to account for the difference between her interim annuity payments and her final annuity calculation . Id. at 8 -9; RF, Tab 21 at 11, 14 . The appellant sought help from her local Congres sman for the same . IAF, Tab 7 at 9, 42. Plus , even if the appellant had known or suspected that she was being overpaid, we find that this is a case of exceptional circumstances , for the reasons previously discussed . Supra ¶¶ 18, 20. ¶22 To conclude , we find that r ecovery of a portion of the overpayment —the portion attributable to OPM failing to adjust the appellant’s annuity to account for her SSA benefits during the 21 -month span of October 2008 to July 2010 when it had specific notice of the same —would be against equity and good conscience due to OPM’s numerous, extensive, and largely unexplained errors or delays. Accordingly, we hereby remand the matter to OPM for issuance of a new reconsiderati on decision consistent with this decision .7 7 We leave it to OPM to calculate the precise amount of the appellant’s overpayment after accounting for the partial waiver. But , we note that the applicable guidelines indicate that this amount will be 60% of the appellant’s SSA benefits for that period because the overpayment accrued more than a year after the appellant’s annuity first commenced. 5 U.S.C. § 8452 (a)(2)(A); Cebzanov v. Office of Personnel Management , 96 M.S.P.R. 562 , ¶ 5 (2004); 5 C.F.R. § 844.302 (c)(2); IAF, Tab 10 at 7 -10. 12 ORDER ¶23 On remand, OPM shall issue a new reconsideration decision that waives the portion of overpayment described above . OPM shall issue the new reconsideration decision within 60 calendar days from the date of this Order and shall advise the appellant of her right to appeal to the Board if she d isagrees with that new decision. See, e.g. , Stephenson v. Office of Personnel Management , 119 M.S.P.R. 457 , ¶¶ 5-6 (2013). ¶24 We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’ s Order and of the actions it h as taken to carry out the Board’ s Order. We ORDER the appellant to provide all nece ssary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶25 No later than 30 d ays after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the B oard’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182 (a). FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LUCAS_CAMBRA_L_SF_0845_13_0413_B_1_FINAL_ORDER_2000996.pdf	2023-02-08	null	SF-0845	NP
3,594	https://www.mspb.gov/decisions/nonprecedential/WALKER_ROBERT_A_SF_3443_22_0007_I_1_FINAL_ORDER_2001007.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT A. WALKER, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-3443 -22-0007 -I-1 DATE: February 8, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert A. Walker , Hacienda Heights, California, pro se. Maya Soloway , Esquire, Los Angeles, California, for the agency . BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of two lateral reassignment s for lack of jurisdiction . On petition for review, the appellant does not discernably address the administrative judge’s conclusi on regarding the Board’s jurisdiction over his reassignments . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required 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 We discern no basis to disturb the administrative judge’s conclusion that the appellant failed to show that the Board has jurisdiction over his reassignment s, which did not result in a loss of pay or grade. Initial Appeal File (IAF) , Tab 2 at 3-4, Tab 6, Initial Decision at 4 -5; see Hennessey v. U.S. Postal Service , 28 M.S.P.R. 127 , 128 (1985 ) (explaining that the Board does not have jurisdiction over a reassignment that does not result in the loss of pay or grade ). ¶3 In his filings both before the administrative judge and on review, the appellant has seemingly alleged that the agency violated a 2017 settlement agreement. Walker v. Department of Veterans Affairs , MSPB Docket No. SF-0752 -17-0713 -I-1, Initial Appeal File , Tab 22 at 1 -2, 4 -6; see Miles v. Department of Veterans Affairs , 84 M.S.P.R. 418 , ¶ 6 (1999) (explaining that the Board construes pro se pleadings liberally) . To this end , he ostensibly argues that the settlement agreement precluded the agency from transferring him to an agency 3 component to which he was reassigned .2 IAF, Tab 2 at 2; Petition for Review (PFR) File, Tab 1 at 3. He also seemingly alleges that , in 2017, the agency failed to provide him with a Standard Form 50. PFR File, Tab 1 at 3. Accordingly, we FORWARD the matter to the Western Regional Office for docketing as a compliance matter . In so doing, we make no finding regarding either the timeliness or the merits of the appellant’s appa rent compliance -related claim s. 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 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. 2 The appellant apparently believes as much because an “interim judge” so informed him. Petition for Review File, Tab 1 at 3. 3 Since the issuance of the initial decision in this matter, the Board m ay have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 peti tion for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC r eview of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. I f so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 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 EEOC via commercial delivery or by a method requi ring 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 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 describe d in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for j udicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 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 de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WALKER_ROBERT_A_SF_3443_22_0007_I_1_FINAL_ORDER_2001007.pdf	2023-02-08	null	SF-3443	NP
3,595	https://www.mspb.gov/decisions/nonprecedential/TURNER_KELLY_DE_0752_21_0223_I_1_FINAL_ORDER_2000265.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KELLY TURNER, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER DE-0752 -21-0223 -I-1 DATE: February 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew R. Young , Esquire, Houston, Texas, for the appellant. Douglas Eckstein , Xenia, Ohio, for the agency. John Hippe , Cheyenne , Wyoming , for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal for failure to report to duty as directed and lack of candor. On review, she reargues that the agency’s order to relocate to her duty station in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 South Dakot a was improper. She also argues that the administrative judge improperly weighed the evidence in finding that s he lacked candor. Finally, she reasserts her disability discrimination claim. 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. Therefore, we DENY the petition for review and AFFIRM the init ial 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 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 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 3 immediately review the law applicable to your claims and carefully follow all filing time limits and requirement s. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you h ave questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whic h is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.go v/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representatio n in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 5 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the 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.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 wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for inf ormation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TURNER_KELLY_DE_0752_21_0223_I_1_FINAL_ORDER_2000265.pdf	2023-02-07	null	DE-0752	NP
3,596	https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_3443_20_0832_I_1_FINAL_ORDER_2000269.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES DERECK ADAMS , Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER S DC-3443 -20-0832 -I-1 DC-3443 -21-0051 -I-1 DATE: FEBRUARY 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles Dereck Adams , Herndon, Virginia, pro se. Paul Y. Kim and James J. Delduco , Esquire, Redstone Arsenal, Alabama, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Memb er Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed petition s for review of the initial decision s, which dismissed his appeals for lack of jurisdiction . In his petition s for review, the appellant disputes the administrative judges’ jurisdictional findings and argues that, if his petitions are not granted and if the dismissals remain undisturbed, he 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 will have no other redress . Generally , we grant petitions such as the se 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 th ese appeal s, we JOIN them under 5 C.F.R. § 1201.36 (a)(2)2 and 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. ¶2 However, w e expressly MODIF Y the initial decision in MSPB Docket N o. DC-3443 -21-0051 -I-1 in the following regard. To the extent the appellant seeks, in this appeal, to challenge the agency’s action in previously withholding evidence during a prior appeal , that matter was fully adjudicated in Adams v. Department of Defense , MSPB Docket No. DC -3443 -10-0711 -B-1. See Adams v. Department of Defense , MSPB Docket No. DC -3443 -10-0711 -B-1, Initial Decision (Feb . 29, 2016) ; Adams v. Department of Defense , MSPB Docket No. DC-3443 -10-0711 -B-1, Final Order (July 14, 2016). T herefore , further consideration is precluded under the doctrine of collateral estop pel. Collateral estoppel precludes parties from relitigating issues when: (1) The issue previously adjudicated is identical to that now presented; (2) that issue was actually litigated in the prior case; (3) the previous determination of that issue was n ecessary to the 2 We have joined these cases for adjudication based on our determination that doing so will expedite processing of the cases and will not adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (a)(2), (b). 3 resulting judgment; and (4) the party precluded by the doctrine was fully represented in the prior case. Kroeger v. U.S. Postal Service , 865 F.2d 235 , 239 (Fed. Cir. 1988) ; Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 341 (1995) ; Fisher v. Department of Defense , 64 M.S.P.R. 509 , 515 (1994) (finding that a party’s pro se status does not preclude the application of collateral estoppel; the “fully represented” requirement is satisfied when the party to whom collateral estoppel is applied has had a full and fair chance to litigate the issue in question) . In all other respects , we AFFIRM the initial decision s. NOTICE OF APPEAL RIGHTS3 The in itial decision s, as supplemented by this Final Order with respect to MSPB Docket No. DC-3443 -21-0051 -I-1, constitute the Board’s final decision s 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 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the noti ce, the Board cannot advise which option is most appropriate in any matter. 4 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 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 particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 5 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayme nt of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 6 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)( B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Cir cuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washi ngton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/prob ono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_L ocator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ADAMS_CHARLES_DERECK_DC_3443_20_0832_I_1_FINAL_ORDER_2000269.pdf	2023-02-07	null	S	NP
3,597	https://www.mspb.gov/decisions/nonprecedential/CRATER_CHRISTINE_PH_0752_22_0095_I_1_FINAL_ORDER_2000272.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTINE CRATER, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER PH-0752 -22-0095 -I-1 DATE: February 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Randolph Elliott , Camp Hill, Pennsylvania, for the appellant. Steven Richard Dade , Esquire, New Cumberland, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal . For the reasons set forth below, the appellant’s petition for 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 is DISMISSED as untimely fil ed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 Effective January 2, 2022 , the agency removed the appellant from her position as a GS -6 Supply Technician based on a charge of failure to report to work o n a regular, full -time basis . Initial Appeal File (IAF), Tab 1 at 9-18, Tab 4 at 11. She appealed the agency’s removal action to the Board . IAF, Tab 1 . Following a hearing on the matter , the administrative judge issued a n initial decision on April 29, 2022, affirming the removal and finding that the appellant failed to prove her claim of disability discrimination. IAF, Tab 18, Initial Decision (ID) at 1, 7-9. The administrative judge notified the appellant that the initial decision would become final on June 3, 2022 , unless a petition for review was filed by that date. ID at 10. ¶3 On June 6, 2022, the appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. In the petition, the appellant challenges the merits of the agency’s removal action by arguing, among other things, the following: (1) her attendance had improved prior to her removal; (2) she was an outstanding performer; and (3) the administrative judge mischaracterized the nature of her absences . Id. at 4-5. The appellant’s nonattorney representative, who has filed the petition for review on her behalf , also states as follows: “It must be stated for the record that I the Appellant’ s representative was TDY at Tinker Air Force Base in Oklahoma City, OK., from 4/29/2022 thru 5/6/2022, and was unavailable to file this appeal for Appellant before the deadline .” Id. at 5 (grammar and punctuation in original) . The agency has not responded to the appellant’s petition for review. ¶4 On June 7, 2022, t he Office of the Clerk of the Board notified the appellant that her petition for review was untimely and explained that she must file a motion asking the Board to acce pt the petition for review as timely and/or to 3 waive the time limit for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond. ANALYSIS ¶5 A petition for review must be filed within 35 days after the issuance of the initial decision, or, if the petitioner shows that she received the initial decision more than 5 days af ter the date of the issuance, within 30 days after the date she received the initial decision. 5 C.F.R. § 1201.114 (e). Here, t he appellant indicate s in her petition for review that she did not receive the initial decision until “5/6/2022 12:00:00 AM. ” PFR File, Tab 1 at 3. However, the record reflects that the initial decision was sent to the appellant via email on the day it was issued, i.e., April 29, 2022. IAF, Tab 19 at 1. Board documents served electronically on registered e -filers are deemed received on the date of the electronic submission. 5 C.F.R. § 1201.14 (m)(2); IAF, Tab 1 at 2 . The appellant therefore received the initial decision on April 29, 2022 ; accordingly, her petition for review is untimely by 3 days . PFR File, Tab 1 ; see 5 C.F.R. § 1201.114 (e). ¶6 The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, the appellant must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). In determining whether there is good cause, the Board considers the length of the delay, the reasonableness of the excuse and showing of due diligence, whether the appellant is proceeding pro se, and whether she has present ed evidence of the existence of circumstances beyond h er control that affected h er ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal relationship to h er inability to file a timely petition. See W yeroski v. Department of Transportation , 106 M.S.P.R. 7 , ¶ 7, aff’d , 253 F. App’x 950 (Fed. Cir. 2007). 4 ¶7 We find that the appella nt has not demonstrated good cause for the untimely filing of her petition for review. Although the appellant is not represented by a licensed attorney and her 3 -day delay is not especially lengthy, t he Board will waive its filing time limit only upon a showing of good cause . See Melendez v. Department of Homeland Security , 112 M.S.P.R. 51 , ¶ 16 (2009) (declining to waive the filin g time l imit for a 3 -day filing delay when the appellant failed to show good cause for the delay ). Here, the appellant has failed to make such a showing; indeed, she failed to respond to the notice affording her the opportunity to file a motion to accept the filing as timely and/or to waive the time limit for good cause . See Smith v. Department of the Army , 105 M.S.P.R. 433 , ¶ 6 (2007 ) (finding that the appellant failed to show good cause for his 1 -day delay in filing his petition for review when he failed to respond to the notice instructing him to establish good cause for the untimely filing). ¶8 As discussed above , in her petition for review, the appellant argues the merits of her appeal . PFR File, Tab 1 at 4-5. These arguments, which are not based on any new or previously unavailable evidence , do not establish good cause for the untimeliness of her petition. See Guevara v. Departmen t of the Navy , 112 M.S.P.R. 39 , ¶ 7 (2009) (finding that the appellant failed to establish good cause for his untimely filed petition for review when he merely argued the merits of his Board appeal). Additionally, as discussed, the appellant’s nonattorney representative vaguely asserts that he wa s “unavailable” because he was in a “TDY”2 status in Oklahoma City, Oklahoma ; however, he provides no explanation as to how or why this status precluded him from timely filing a 2 We surmise that the appellant is referring to a “temporary duty ” status. See Marable v. Department of the Army , 52 M.S.P.R. 622 , 624 (1992 ) (using “TDY” as an abbreviation for “temporary duty”). 5 petition for review or seeking an extension of time within which to do so .3 PFR File, Tab 1 at 5; see Minor v. Department of the Air Force , 109 M.S.P.R. 692 , ¶ 7 (2008) (explaining that personal difficulties do not constitute good cause for a filing delay in the absence of a specific showing of how they affected the appellant’s ability to timely file a petition or a req uest for an extension of time); see also Kinan v. Department of Defense , 89 M.S.P.R. 407 , ¶ 6 (2001) (explaining that the appellant’s vague assertion that he experienced “difficulty and hardship” did not establish good cause for his filing delay). ¶9 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regardin g the removal 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 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 3 The Board has routinely held that appellants are responsible for the actions and inactions of their chosen representatives. See, e.g. , Sparks v. U.S. Postal Service , 32 M.S.P.R. 422 , 425 (1987). Indeed, an appellant has a personal duty to monitor the progress of her ap peal and not leave the matter entirely to her representative. See Miller v. Department of Homeland Security , 110 M.S.P.R. 258, ¶ 12 (2008). 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 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 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. 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 unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 such request with the EEOC’s Office 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. 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 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 competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal c ases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C . 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the 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. Contact information for the courts of appeals can be 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	CRATER_CHRISTINE_PH_0752_22_0095_I_1_FINAL_ORDER_2000272.pdf	2023-02-07	null	PH-0752	NP
3,598	https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_3443_18_0287_I_1_FINAL_ORDER_2000283.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES DERECK ADAMS , Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER S1 DC-3443 -18-0287 -I-1 DC-3443 -18-0288-I-1 DATE: February 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL2 Charles Dereck Adams , Herndon, Virginia, pro se. Todd F. Tilford , Huntsville, Alabama, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision in MSPB Docket No. DC-3443 -18-0287 -I-1, which dismissed for lack of jurisdiction and, 1 We have joined these cases on review based on our determination that doing so will expedite their processing and will not adversely affect the interests of the parties. 5 C.F.R. § 1201. 36(a)(2), (b). 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 in part, as barred by res judicata his appeal alleging that the agency unlawfully tampered with evid ence during an earlier Board appeal and during processing of a case before the Equal Employment Opportunity Commission . On petition for review, the appellant argues , inter alia, that the Board does have jurisdiction over his appeal and that none of his c laims is barred by res judicata. The appellant also has filed a petition for review of the initial decision in MSPB Docket No. DC-3443 -18-0288 -I-1, which dismissed for lack of jurisdiction his appeal challenging a ruling made by an administrative judge of the agency’s Personnel Security Appeals Board. He also argue s, inter alia, that his appeal should not have been dismissed for lack of jurisdiction. Generally, we grant petitions such as th ese 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 fili ngs in th ese appeal s, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition s for review. Therefore, we DENY the petition s for review and AFFIRM the initial decision s, which are now the Board’s final decision s.3 5 C.F.R. § 1201.113 (b). 3 The appellant has filed motions for summary judgment in the above cases seeking a ruling in his favor because of delays resulting from the Board’s continued lack of quorum. Adams v . Department of Defense , MSPB Docket No. DC -3443 -18-0287 -I-1, Petition for Review File, Tabs 9 -10; Adams v. Department of Defense , MSPB Docket No. DC -3443 -18-0288 -I-1, Petition for Review File, Tabs 9-10. Specifically, he alleges that he is being denied a Constitutional right to a speedy adjudication of his cases. Id. 3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts wil l rule regarding which cases fall within their jurisdiction. If you wish to seek 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 abou t whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petit ion for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court However, the right to a speedy and public trial as provided for in the 6 th Amendment to the Constitution applies to criminal prosecutions , and therefore any such right is not implicated in a proceeding before the Board. Biddle v. Department of the Treasury , 63 M.S.P.R. 521, 529 (1994) (finding that 6th Amendment rights were not implicated because the individual was not subjected to a custodial interrogation). Moreover, the Board’s procedures do not allow for summary judgment. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 46 (2015 ), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-25. Therefore, the appellant’s motions are denied. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in fina l decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A ). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on un lawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 5 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be 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 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may fi le a 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 d ecision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of part icular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent juri sdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S . Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the service s 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	ADAMS_CHARLES_DERECK_DC_3443_18_0287_I_1_FINAL_ORDER_2000283.pdf	2023-02-07	null	S1	NP
3,599	https://www.mspb.gov/decisions/nonprecedential/MANNING_CHARLOTTE_DC_0752_09_0722_I_4_FINAL_ORDER_2000373.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLOTTE MANNING, Appellant, v. FEDERAL TRADE COMMIS SION, Agency. DOCKET NUMBER DC-0752 -09-0722 -I-4 DATE: February 7, 2023 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charlotte Manning , Vista , California , pro se . Gail Serenco , Washington , D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal as untimely refiled . On review, the appellant alleges that she did not refile her appeal on time because she was medically unable to do so and disagrees that the lack of medical evidence in support 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 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 claims should be determinative of good cause . 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, sect ion 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 APPE AL 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 w ith which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possib le choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of iss uance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. O f particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the s ervices 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 affec ted by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. 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 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: 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 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.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	MANNING_CHARLOTTE_DC_0752_09_0722_I_4_FINAL_ORDER_2000373.pdf	2023-02-07	null	DC-0752	NP

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