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3,700 | https://www.mspb.gov/decisions/nonprecedential/HILL_AMY_W_AT_3443_17_0371_I_1_FINAL_ORDER_1997236.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMY W. HILL,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-3443 -17-0371 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amy W. Hill , Pinson, Alabama, pro se.
Brian Self , Esquire, and Neal Wilson , Esquire, Parkersburg, West Virginia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINA L ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her nonselection appeal for lack of jurisdiction without a hearing .
Generally, we grant petitions such as this one only in the following
circumstances: the ini tial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during ei ther 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 tha t, 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).
BACKGROUD
¶2 The appellant is a GS -14 Management and Program Analyst for the agency.
Initial Appeal File (IAF) , Tab 1 a t 1, 7. From 2014 to 2015, s he served a rotation
as acting Project Branch Manager , and during that time she filed an application
for appointment to the position. Id. at 11, 14, 31, 33 -36, 71 -73. However, on or
about September 8, 2015, the agency selecte d another individual instead . Id. at 5,
40, 42, 73.
¶3 On March 31, 2017, the appellant filed a Board appeal of her nonselection
and requested a hearing. Id. at 2 -3. The administrative judge issued an
acknowledgment order, informing the appellant that th e Board generally lacks
jurisdiction over nonselections, but listing several exceptions to the rule and
ordering the appellant to file evidence and argument on the jurisdictional issue.
IAF, Tab 2 at 2 -5. The appellant did not respond to the acknowledgme nt order,
and the agency moved to dismiss the appeal on jurisdictional and timeliness
grounds. IAF, Tab 6. The administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction without a hearing, finding that the
3
appellant fa iled to make a nonfrivolous allegation that the Board has jurisdiction
over her appeal. IAF, Tab 7, Initial Decision at 1, 3. Having dismissed the
appeal on jurisdictional grounds, the administrative judge did not reach the
timeliness issue. Id. at 3 n. 2.
¶4 The appellant has filed a petition for review contesting the initial decision
and has attached several documents in support.2 Petition for Review (PFR) File,
Tab 1. The agency has filed a response, and the appellant has filed a reply to the
agency’s r esponse. PFR File, Tabs 2, 4.
ANALYSIS
¶5 The Board does not have jurisdiction over all matters involving a Federal
employee that are allegedly unfair or incorrect. Rather, the Board ’s jurisdiction
is limited to those matters over which it has been given ju risdiction by statute or
regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir.
1985); Johnson v. U.S. Postal Service , 67 M.S.P.R. 573, 577 (1995). The
appellant states she “believes that the Board should have jurisdiction over hiring
processes and review of those processes should improper procedures and/or laws
be violated.” PFR File, Tab 4 at 5. However, except in certain limited categories
of cases, including employment practices, Veterans Employment Opportunities
Act, Uniformed Se rvices Employment and Reemployment Rights Act , and
individual right of action appeals, the Board lacks jurisdiction over such matters.
See Becker v. Department of Veterans Affairs , 112 M.S.P.R. 507 , ¶¶ 5-6 (2009).
The appellant has not made a nonfrivolous allegation either below or on revie w
that her case falls under any of these exceptions.
2 We have reviewed the documentary evidence that the appellant has attached to her
petition for review, at least some of which was included in the record below. We find
that none of this evidence pe rtains to the issue of jurisdiction, and is therefore not
material to the outcome of the appeal. See Russo v. Veterans Administration ,
3 M.S.P.R. 34 5, 349 (1980).
4
¶6 On review, the appellant argues that, under 5 U.S.C. § 7701 (a), an employee
or applicant may submit an appeal to the Board from any action which is
appealable to the Board. PFR File, Tab 1 at 4 -5. This is true. However, it does
not establish that the appellant’s nonselection is, in fact, an action appealable to
the Board. Section 7701 is not itself a grant of jurisdiction. Rather, it sets forth
the procedures for adjudicating appeals that are within the Board’s jurisdiction.
Belhu meur v. Department of Transportation , 104 M.S.P.R. 408, ¶ 9 (2007).
Therefore, notwithstanding this provision, the appellant must still establish that
she has been subjected to an action “which is appealable to the Board.”
¶7 Next, the appellant argues that her nonselection violated the Equal Pay Act
of 1963 and the sex discrimination p rovisions of Title VII of the Civil Rights Act
of 1964, thereby violating several of the merit system principles of 5 U.S.C.
§ 2301 (b). PFR File, Tab 1 at 5 -6, Tab 4 at 4 -7; see 29 U.S.C. § 206(d);
42 U.S.C. § 2000e -16(a). However, even if this is true, it is insufficient to
establish Board jurisdiction over the appeal. The merit system principles are not
self-executing, and they do not provide an independent basis for Board
jurisdiction. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 15 (2007) ;
Corbett v. Depar tment of Health & Human Services , 7 M.S.P.R. 431 , 434 (1981) .
Furthermore, even if the agency committed a prohibited personnel practi ce under
5 U.S.C. § 2302 (b)(1), this would not provide a basis for Board jurisdiction
either . Imdahl v. U.S. Postal Service , 72 M.S.P.R. 453 , 456 (1996) ; Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73
(D.C. Cir. 1982).
¶8 The appellant also argues the merits of her case, including that the agency
selected a man to perform the jo b that she previously had performed, except with
less responsibility and for greater pay. PFR File, Tab 1 at 5, 7 -8. She also argues
that she was the better -qualified candidate, the agency gave the selectee
preferential treatment , and the agency has been less than transparent about the
matter. PFR File, Tab 1 at 4 -5, 7-8, Tab 4 at 7. However, we find that the
5
appellant’s arguments are immaterial. Even if these allegations are true, and the
agency’s actions toward her in the selection process were unfai r, incorrect, or
even illegal, this is insufficient to establish Board jurisdiction over the appeal.
See Davis , 105 M.S.P.R. 604 , ¶ 15; Johnson , 67 M.S.P.R. at 577.
¶9 To the extent that the appellant is arguing that she filed this appeal based on
the advice of an equal employment opportunity counselor, PFR File, Tab 1 at 4,
we find that this advice was erroneous and is insufficient to confer Board
jurisdiction, see Nabors v. U.S. Postal Service , 31 M.S.P.R. 656 , 660 (1986) ,
aff’d , 824 F.2d 978 (Fed. Cir. 1987) (Table) .
¶10 Finally, the appellant argues, for several reasons, that her appeal should be
considered timely, or that the filing deadline should be waived. PFR File, Tab 1
at 4, Tab 4 at 5 -6. However, because the Board lacks jurisdiction over this
appeal, we agree wi th the administrative judge’s decision not to reach the
timeliness issue. See Richardson v. Department of the Treasury , 41 M.S.P.R. 40,
43 n.* (1989) .
¶11 For these reasons, we find that the appellant has not made a nonfrivolous
allegation of Board jurisdiction over her appeal and that she has provided no basis
to disturb the initial decision .
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
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 mat ter.
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 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
7
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 rec eives this decision before
you do, then you must file with the 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 o rigin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S . district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative re ceives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Offic e of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Fed eral Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 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 interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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 | HILL_AMY_W_AT_3443_17_0371_I_1_FINAL_ORDER_1997236.pdf | 2023-01-27 | null | AT-3443 | NP |
3,701 | https://www.mspb.gov/decisions/nonprecedential/HILLARY_KEENAN_DC_0432_16_0041_A_1_FINAL_ORDER_1997245.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEENAN HILLARY,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DC-0432 -16-0041 -A-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Julie E. Rook Gold , Esquire, Silver Spring, Maryland, for the appellant.
Mindy A. Kaiden , Washington, D.C. , for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINA L ORDER
¶1 The appellant has filed a petition for review of the addendum initial
decision, which denied his motion for attorney fees. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 app eal, 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 administrative judge denied the appellant’s request for attorney fees
because he failed to prove that he was the prevailing party and that attorney fees
were in the interest of justice. Attorney Fee File (AFF), Tab 6, Addendum Initial
Decision (AID) at 4 -12. On petition for review, t he appellant challenges both of
these findings. Petition for Review (PFR) File, Tab 1 at 6 -9. Because we agree
that an award of atto rney fees would not be in the interest of justice, we need not
determine whether the appellant was the prevailing party. See McGuire v. U.S.
Postal Service , 13 M.S.P.R. 158 , 159 n.2 (1982).
¶3 An award of attorney fees may be warranted in the interest of justice when,
for example: (1) the agency engaged in a pro hibited personnel practice; (2) the
agency action was clearly without merit or wholly u nfounded, or the employee
was substantial ly innocent of the charges; (3) the agency initiated the action in
bad faith; (4) the agency committed a gross procedural error; or (5) the agency
knew or should have known that it would not prevail on the merits. Allen v. U.S.
Postal Service , 2 M.S.P.R. 420 , 434 -35 (1980). These criteria apply equally in
cases when a settlement is reached prior to a decision on the merits. Vann v.
Department of the Navy , 38 M.S.P.R. 411 , 414 (1988).
3
¶4 The appellant first argues that an award of attorney fees is in the interest of
justice because to deny fees when the parties reach a settlement agreement but
reach an impasse regarding fees would discourage settlement, which is against
public policy. PFR File, Tab 1 at 8. However, echoing the U.S. Supreme Court,
the Board has found that “the purposes of settlement will largely be lost if the
fees proceeding becomes the first [major litigation] in settled cases.” Vann ,
38 M.S.P.R. at 414 n.2 (citing Hensley v. Eckerhart , 461 U.S. 424 , 437 (1983)) .
The Board has therefore emphasized “that the parties should make every effort,
during the course of their negotiations, to settle any potential liability for f ees as
well.” Id. Furthermore, as the administrative judge noted, the agency may have
declined to settle if doing so would have required it to pay the appellant’s
attorney fees. AID at 11 -12. Accordingly, we find the appellant’s argument to be
without merit. See Hutchison v. U.S. Postal Service , 38 M.S.P.R. 491 , 494 -95
(1988) (finding that an award of attorney fees was not in the int erest of justice,
despite the appellant obtaining prevailing party stat us as a result of a settlement) ,
aff’d , 871 F.2d 1097 (Fed. Cir. 1989) (Table) ; see also Stringer v. Department of
the Treasury , 27 M.S.P.R. 644, 644 n.* (1985) (finding that an agency’ s
agreement not to oppose an appellant’s request for attorney fees does not affect
an appellant’s burden of establishing that an award of fees is justified).
¶5 The appellant also argues that an award of attorney fees is in the interest of
justice because the agency committed a gross p rocedural error. PFR File, Tab 1
at 8-9. He notes that the deciding official admitted that a lack of evidence
indicating that the appellant wanted to improve his performance was material t o
the decision to remove him. AFF, Tab 1 at 6. The appellant asserts that he was
never notified that the deciding official considered this fact to be material and
was not provided the opportunity to produce evidence of his willingness to
improve his perf ormance. PFR File, Tab 1 at 8 -9. The appellant alleges that his
due process rights were therefore violated. Id. at 9.
4
¶6 However, in his reply to the proposal notice, the appellant argued that he
was “both willing and able to improve his performance” and a sserted that his
second -level supervisor’s allegation that he “[could not] or [would] not” improve
his performance was without merit. Initial Appeal File, Tab 4 at 58. A deciding
official does not violate an employee’s due process rights when he consider s
issues raised by an employee in his reply to the proposed adverse action and then
rejects those arguments in reaching a decision. Mathis v. Department of State ,
122 M.S.P.R. 507 , ¶ 9 (2015). An employee is not entitled to know the particular
weight the deciding official will attach to his arguments raised in reply to the
proposal notice. Id. Accordingly, we find that the appellan t failed to prove that
the agency committed a gross procedural error. For the reasons set forth above,
we deny the appellant’s motion for attorney fees.
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
statem ent of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requiremen ts. 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.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
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, nation al origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternativ ely, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such req uest with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request fo r review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C.
/s/ for
Jennifer Everling
Acting Clerk of the Board | HILLARY_KEENAN_DC_0432_16_0041_A_1_FINAL_ORDER_1997245.pdf | 2023-01-27 | null | DC-0432 | NP |
3,702 | https://www.mspb.gov/decisions/nonprecedential/BAILEY_KEITHY_L_DA_0752_21_0428_I_1_FINAL_ORDER_1997251.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEITHY L. BAILEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -21-0428 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vanessa Duncan -Smith , Hackensack, New Jersey, for the appellant.
Albert Lum , Brooklyn, New York , for the appellant.
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 her appeal as untimely filed without good cause shown.
On review, the appellant challenges the administr ative judge’s finding that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
she did not exercise due dilige nce or ordinary prudence in monitoring her appeal
to ensure it was timely filed after submitting the relevant paperwork to her
representatives. Petition f or Review (PFR) File, Tab 1 at 3 . She argues that the
untimeliness of her appeal is due to Postal Service delivery errors and her
representatives’ lack of diligence. Id. at 3-5. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision cont ains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argu ment is available that,
despite the pet itioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filin gs in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review . Except as
expressly MODIFIED by this Final Order to explain why her argument s regarding
mail delivery and lack of due diligence by her representatives do not provide
good cause to excuse the delay , we AFFIRM the initial decision .
¶2 The Board has routinely held that an appellant is bound by the action or
inaction of her chos en representative, and delays caused by a representative will
not constitute good cause to excuse a filing delay . Strong v. Department of the
Navy , 86 M.S.P.R. 243 , ¶ 7 (2000). The Board will bypass this general rule when
the appel lant has proven that her diligent efforts to prosec ute her appeal were,
without her knowledge, thwarted by her representative’s deceptions and
negligence. Id. However, an appellant remains responsible for monitoring the
progress of her appeal , and her unwarranted belief that her representative is
pursuin g her appeal is not a proper basis for finding due diligence. Id. Here,
3
the appellant has not alleged deception by her representative s. Further,
as discussed below, she has not shown that she monitored her appeal.
¶3 Alternatively, it may be appropriate to find good cause for an attorney’s
negligent failure to meet a deadline when an appellant did “ everything that could
reasonably be expected of her ” to ensure her attorney met the deadline , but he
still failed to do so . Herring v. Merit Systems Protectio n Board , 778 F.3d 1011 ,
1012 -15, 1017 -18 (Fed. Cir. 2015) (finding good cause for a 10 -day filing delay
when the appellant had taken all steps necessary to ensure a timely filing,
including contacting her attorney 6 days before the deadline and getting assurance
that the appeal would be timely filed) (emphasis in original) . We find the
circumstances here are not appropriate for finding good caus e on this basis.
¶4 On August 12, 2021, the appellant mailed her appeal form and other
materials to her representatives via U.S. Postal Service Express Mail. Initial
Appeal File (IAF), Tab 7 at 12 -13. One of her representatives submitted a
declaration below stating that he regularly checked the post office box to which
the appellant mailed her Express Mail package on August 12, 2021, and he did
not receive either the package or notice that it was available for pick up .
Id. at 13. The agency’s tracking info rmation reflects that, as of August 16, 2021,
it had generated t wo notices that the package was available . IAF, Tab 10 at 27.
After no one retrieved the package , the agency designated it as unclaimed on
August 28, 2021, and proceeded to return it to the appellant. IAF, Tab 7 at 13,
Tab 10 at 27. The Postal Service ultimately delivered the returned package to the
appellant after the deadline for filing the instant appeal.2 IAF, Tab 10 at 26.
2 The Board has found that an appellant who fails to pick up mail delivered to her post
office box is deemed to have constructively received the mail the date it was delivered
to the box. Little v. U.S. Postal Service , 124 M.S.P .R. 183 , ¶ 9 (2017); 5 C.F.R.
§ 1201.22 (b)(3). We find it unnecessary here to resolve whether the appellant’s
representatives received constructive notice of the appellant’s August 12, 2021 package
when the Postal Service attempted delivery. Assuming that her representatives did not,
as claimed, receive either the package or notices that it was available, we still find the
appellant failed to exercise due diligence .
4
¶5 Here, the appellant did not do everything she could to ensure timely filing
of her appeal. For the first time on review, she attests that, on the same day that
she mailed her package containing her appeal form, she “verbally notified” one of
her represent atives that she sent the paperwork and emailed another a copy of all
paperwork she had mailed via Express Mail along with the Express Mail tracking
number . PFR File, Tab 1 at 3. She indicated that her representatives never
notified her that they did not receive her paperwork. Id.; IAF, Tab 7 at 12 -13.
However, she also did not contact her representative s to inquire about her appeal
until September 29, 2021, when she received information that she was “being
taken off the employment roll .” IAF, Tab 7 at 1 2-13. At that time, one of her
representatives advised her that he never received her appeal paperwork. Id. The
appellant filed her appeal the next day but by that point was untimely by
approximately 45 days . IAF, Tab 1 , Tab 10 at 28 -33.
¶6 We agree wit h the administrative judge that the appellant did not take the
necessary steps to ensure her appeal was timely filed. IAF, Tab 12, Initial
Decision (ID) at 5. On review, she does not challenge the administrative judge ’s
finding that she did not contact her representative s at any point between
August 12, when she mailed her appeal package, and the August 16 , 2021 filing
deadline to confirm that they received her paperwork and would file the appeal on
her behalf . ID at 5. She also does not d ispute that she failed to check the
tracking information for her package, which reflected that it was unclaimed and
being returned to her as of August 28, 2021. ID at 5 ; IAF, Tab 7 at 9 . Instead,
she waited until she learned she was being taken off the a gency’s rolls to follow
up on whether her representatives had filed her appeal.
5
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 claim s determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your cas e, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may h ave updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimin ation . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a 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
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of 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
4 The original statutory provision that provided for judicial review of certain
whistl eblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisi ons in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 S tat. 1510.
9
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BAILEY_KEITHY_L_DA_0752_21_0428_I_1_FINAL_ORDER_1997251.pdf | 2023-01-27 | null | DA-0752 | NP |
3,703 | https://www.mspb.gov/decisions/nonprecedential/GREENLAW_ROSEMARY_B_SF_0752_17_0090_I_1_FINAL_ORDER_1996614.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSEMARY B. GREENLAW ,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
SF-0752 -17-0090 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosemary B. Greenlaw , San Jose , California, pro se.
David M. Kahn , 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 her termination appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is base d on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Ti tle 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 In April 2016 , the agency appointed the appellant to an Administrative
Assistant position in the competitive service , with her Standard Form 50 (SF -50)
reflecting that she was appointed by reinstatement under the authority of 5 C.F.R.
§ 315.401 as a former career employee . Initial Appeal File (IAF), Tab 1 at 7.
Effective October 31, 2016, the appellant was terminated from her position. Id.
at 10. The agency informed her that, as a reemployed annuitant, she did not have
the right to appeal her termination to the Board. Id.
¶3 The appellant filed an appeal with the Board, claiming that her termination
was retaliatory. IAF, Tab 1 at 5. She explained that she was not selected for a n
Investigator position despite being better qualified than other candidates for the
position.2 Id. She asserted that , after her nonselection, she was directed to
perform the former duties of one of the selectees, though she did not receive the
2 The appellant’s nonselection claim was docketed as a separate appeal. Greenlaw v.
Department of Labor , MSPB Docket No. SF-3443 -17-0089 -I-1. The appellant has filed
a petition for review concernin g that appeal as well, and the Board will issue a separate
final decision concerning her nonselection.
3
higher compensation that the selectee had received. Id. She alleged that , after
she discussed this issue with her immediate supervisor and other management
officials, she was terminated in retaliation. Id.
¶4 The administrative judge informed the appellant that it appeared she was a
reemployed annuitant and that reemployed annuitants generally have no right to
appeal their terminatio n to the Board. IAF, Tab 2 at 2. He therefore ordered her
to file evidence and argument establishing that the appeal was within the Board’s
jurisdiction. Id.
¶5 In her response, the appellant argued that she was hired as a
career -reinstatement candidate , rather than as a reemployed annuitant. IAF,
Tab 3 at 4. She referred to the SF-50 reflecting her reinsta tement under the
authority of 5 C.F.R. § 315.401 . IAF, Tab 1 at 7, Tab 3 at 4. In its response, the
agency asserted that the appellant was a reemployed annu itant during her
employment with the agency and thus the Board lack s jurisdiction over her
appeal. IAF, Tab 5 at 5. As proof, the agency attached the appellant’s annuity
statement for May 2016. Id. at 11. The agency also stated that it had issued a
corrected SF -50 two days after the one referred to by the appellant. Id. at 4. The
corrected SF-50 reflects that the appellant was a reemployed annuitant who
served at the will of the appointing officer. Id. at 8. Notably, however, the
corrected SF -50, li ke the initial SF -50, still indicated that the appellant was hired
as a career -reinstatement candidate under the legal authority of 5 C.F.R.
§ 315.401 . Id. at 7 -8.
¶6 Without holding the ap pellant’s requested hearing, the administrative judge
issued an initial decision finding that she undisputedly was receiving a retirement
annuity while an employee with the agency and thus had no appeal rights
pursuant to 5 U.S.C. § 3323 (b)(1). IAF, Tab 6, Initial Decision (ID) at 1 -2. He
found that the appellant failed to make a nonfrivolous allegation of Board
jurisdiction over her termination, and he therefore dismissed her appeal. Id.
4
¶7 The appellant has filed a petition for review,3 the agency has filed a
response, and the appellant has filed a reply to the agency’s response. Petition
for Review (PFR) File, Tabs 1, 4 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The Boar d’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Wilson v. Department of Homeland
Security , 122 M.S.P.R. 262 , ¶ 2 (2015). If an appellant makes a nonfrivolous
allegation of Board jurisdiction over her appeal,4 she is entitled to a jurisdictional
hearing at which she must prove jurisdiction by a preponderance of the evidence.
Jones v. Department of the Treasury , 107 M.S.P.R. 466 , ¶ 11 (2007).
¶9 With exceptions not applicable to this case, reemployed annuitants serve at
the will of the appointing authority. 5 U.S.C. § 3323 (b)(1). Accordingly,
reemployed annuitants generally have no right to appeal an adverse action to the
Board. See Garza v. Department of the Navy , 119 M.S.P.R. 91 , ¶ 9 (2012). On
review, t he appellant does not dispute that she was receiving an annuity while
employed by the agency . PFR File, Tab s 1, 5. Regarding the argument she raised
below, that she was a career -reinstatement appointee , rather than a reemployed
annuitant, we find that the agency’s assertion in the SF-50 that the appellant was
a career -reinstatement appointee does not negate the fact that, for purposes of
5 U.S.C. § 3323 (b)(1), she was a reemployed annuitant receiving an annuity . The
appellant was an at -will employee even if the agency neglected to inform her of
that fact. See Phillips v. Department of Housing & Urban Development ,
3 Although there is a question regarding the timeliness of the appellant’s petition, we
have not decided that issue because the petition for review does not meet the Board’s
criteria for review for the reasons set forth in this Final Order .
4 A nonfrivolous allegation is an assertion that, if proven , could establish the matter at
issue. 5 C.F.R. § 1201.4 (s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appea l.
Id.
5
44 M.S.P.R. 48 , 52 (1990); see also Dunklebarger v. Merit Systems Protection
Board , 130 F.3d 1476 , 1480 (Fed. Cir. 1997) (fi nding that the principles of
estoppel do not apply to vest the Board with s ubject -matter jurisdiction when
Congress has not done so). Because the undisputed evidence establishes that the
appellant was a reemployed annuitant, we find that she has failed to make a
nonfrivolous allegation of jurisdiction. IAF, Tab 5 at 8 , 11.
¶10 The appellant seems to allege that she was terminated in retaliation for
opposing discrimination that she experienced due to her age and disability . IAF,
Tab 1 at 5; PFR File, Tab 1 at 6. However, absent an otherwise appealable
action, the Board has no jurisdiction to adjudicate her claims of discrimination or
retaliation . See, e.g. , Rosario -Fabregas v. Department of the Army , 122 M.S.P.R.
468, ¶ 20 (2015), aff’d , 833 F.3d 1342 (Fed. Cir. 2016). To the extent that the
appellant intended to file an individual right of action appeal, we note that she
has indicated that she has not filed a complaint with the Office of Special
Counsel, IAF, Ta b 1 at 4, and we would therefore lack jurisdiction over such an
appeal, 5 U.S.C. §§ 1214 (a)(3), 1221.
¶11 Finally, t he appellant asserts that she was d enied discovery in her appeal.
IAF, Tab 3 at 4; PFR File, Tab 1 at 7, Tab 5 at 4. However, we find that the
appellant has failed to demonstrate how the absence of discovery prejudiced her
ability to make a nonfrivolous allegation on the dispositive jurisdictional issue .
See Vores v. Department of the A rmy, 109 M.S.P.R. 191 , ¶ 14 (2008), aff’d ,
324 F. App’x 883 (Fed. Cir. 2009); Sommers v. Department of Agriculture ,
62 M.S.P.R. 519 , 523 (1994); 5 C.F.R. § 1201.115 (c).
¶12 Accordingly, we a ffirm the initial decision and dismiss the appeal for lack
of jurisdiction.
6
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights , the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdicti on. If you wish to seek 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 dismis sal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 clai m of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:// www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 met hod requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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 | GREENLAW_ROSEMARY_B_SF_0752_17_0090_I_1_FINAL_ORDER_1996614.pdf | 2023-01-26 | null | SF-0752 | NP |
3,704 | https://www.mspb.gov/decisions/nonprecedential/MAY_PETER_J_NY_3443_16_0303_I_1_FINAL_ORDER_1996701.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PETER J. MAY,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-3443 -16-0303 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter J. May , Rockville Centre, New York, pro se.
Kimberly M. Mitchell , Springfield, 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
dismissed his appeal for lack of jurisdiction . On petition for review, the appellant
argues the agency committed various prohibited personnel practices 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
violations of the merit system principles .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 adm inistrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material eviden ce or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not esta blished 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 may be able to pursue these claims by filing a request for corrective
action with the Office of S pecial Counsel (OSC) . See 5 U.S.C. § 1214 (a)(1)(A) (“The
Special Counsel shall receive any allegation of a prohibited personnel practice and shall
investigate the allegation to the extent necessary to determine whether there are
reasonable grounds to believe that a prohibited perso nnel practice has occurred, exists,
or is to be taken .”). This decision does not preclude the appellant from filing a future
individual right of action appeal with the Board should he exhaust his administrative
remedies with OSC. To the extent the appell ant is complaining about an agency breach
of a settlement agreement, he may be entitled to file a petition for enforcement with the
tribunal before which the settlement agreement was reached. As to the appellant’s
allegation that the agency committed viol ations of the Uniformed Services Employment
and Reemployment Ri ghts Act of 1994 (USERRA) , see Petition for Review File, Tab 1
at 5, he did not raise a claim of a USERRA violation in his appeal. The appellant’s
allegation of a USERRA violation is thus outs ide the scope of this appeal but may form
the basis of a separate Board appeal, if he chooses to file one. See 5 C.F.R.
§§ 1208.11 -.16.
3
NOTICE OF APPEAL RIG HTS3
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 appropria te forum with which to file. 5 U.S.C . § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirem ents. Failure to file within the applicable time
limit may result in the dismis sal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which op tion 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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
6
disposition of allegations of a prohibited p ersonne l practice described in
section 2302(b) other than practices de scribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 ori ginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, perma nently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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 | MAY_PETER_J_NY_3443_16_0303_I_1_FINAL_ORDER_1996701.pdf | 2023-01-26 | null | NY-3443 | NP |
3,705 | https://www.mspb.gov/decisions/nonprecedential/LEOPOLD_DAMON_K_SF_0752_17_0084_I_1_FINAL_ORDER_1996704.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMON K. LEOPOLD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -17-0084 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jack Barry , Littleton, Colorado, 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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained h is removal . On petition for review, the appellant challenges the
administrative judge’s findings regarding the negligent performance charge and
alleges that the agency failed to establish the nexus requirement and 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
reasonableness of the penalty .2 Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of materia l fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decisio n were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not a vailable when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude tha t the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
2 The appellant also argues on review that the administrative judge violated his due
process rights by considering two situations involving undelivered or delayed mail in
sustaining the negligent per formance charge. Petition for Review File, Tab 1 at 2 -3,
5-6. The appellant contends that the administrative judge was precluded from
considering these situations because they were not mentioned in the proposal notice or
the decision letter, they were no t raised by the deciding official during the appellant’s
oral reply to the proposal notice, and he was not charged with either incident. Id. at 3,
5. The Board has rejected the notion that its scope of review is limited to consideration
of the administra tive record established before the agency. See Morgan v. U.S. Postal
Service , 48 M.S.P.R. 607 , 611 (1991). Under 5 U.S.C. § 7701 (a) and (b), the Board
must conduct a hearing if requested by an appellant and consider de novo all the
relevant evidence presented by both parties, whether offered at a hearing or transmitted
as a part of the agency’s administrative record. Id. During the hearing, the appellant
testified that he was aware of the incidents of undelivered mail during the relevant
timeframe, and the administrative judge properly considered this testimony in
sustaining the charge.
3
NOT ICE 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 appropri ate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which opt ion 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 thre e main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judic ial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the co urt at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.u scourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appe al to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar d ays
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link belo w:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination cla ims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be 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 | LEOPOLD_DAMON_K_SF_0752_17_0084_I_1_FINAL_ORDER_1996704.pdf | 2023-01-26 | null | SF-0752 | NP |
3,706 | https://www.mspb.gov/decisions/nonprecedential/GREENLAW_ROSEMARY_B_SF_3443_17_0089_I_1_FINAL_ORDER_1996738.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSEMARY B. GREENLAW ,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
SF-3443 -17-0089 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosemary B. Greenlaw , San Jose , California, pro se.
David M. Kahn , 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 her nonselection 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 bas ed on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. T itle 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not establishe d any basis under section 1201.115 for granting
the petition for review. 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 April 2016, the agency hi red the appellant to serve as a n Administrative
Assistant, GS-0303 -07. Initial Appeal File (IAF), Tab 1 at 7. In May 2016, the
appellant applied for a position as an Investigator, GS -1801, which could be filled
at the 9, 11, or 12 grades. IAF, Tab 7 at 13, 21. The appellant was interviewed
but not selected for the position. Id. at 21. Effective October 31, 2016, the
appellant was terminated from he r Administrative Assistant position. IAF, Tab 1
at 10. The agency informed her that, as a reemployed annuitant, she did not have
the right to appeal her termination to the Board. Id.
¶3 On November 15, 201 6, the appellant filed an appeal with the Board,
raising claims re garding her termination and her non selection for the Investigator
position . Id. at 5 . The appellant’s claim regarding her termination was docketed
as a separate appeal. Greenlaw v. Department of Labor , MSPB Docket No .
SF-0752 -17-0090 -I-1, Initial Appeal File (0090 IAF), Tab 1.2
2 The administrative judge dismissed the appellant’s termination appeal for lack of
jurisdiction , and, upon the appellant’s petition for review, the Board affirmed the initial
3
¶4 Regarding her nonselection claim, the appellant alleged , among other
things, that she was more highly qualified than some candidates who were
younger and not disabled. IAF, Tab 1 at 5 . Without holding the appellant’s
requested hearing, the administrative judge issued an initial decision finding that
the appellant failed to make a nonfrivolous allegation of jurisdiction, and he thus
dismissed her appeal. IAF, Tab 8, Initial Decision (ID) at 1, 4 -5.
¶5 The appellant has filed a petition for review, the agency has filed a response
opposing the petition , and the appellant has filed a reply to the response. Petition
for Review (PFR) File, Tabs 1, 3, 5-6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Bo ard’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Wilson v. Department of Homeland
Security , 122 M.S.P.R. 262 , ¶ 2 (2015). If an appellant makes a nonfrivolous
allegation of Board jurisdiction over her appeal,3 she is entitled to a jurisdictional
hearing at which she must prove jurisdiction by a preponderance of th e evidence.
Jones v. Department of the Treasury , 107 M.S.P.R. 466 , ¶ 11 (2007).
¶7 Generally, a nonselection is not appealable directly to the Board. Pridgen
v. Office of Management & Budget , 117 M.S.P.R. 665 , ¶ 6 (2012). However, as
the administrative judge co rrectly informed the appellant, there are exceptions to
this general rule. IAF, Tab 2 at 2 -5. These exceptions allow an individual to
appeal her non selection when the agency’s decision was (1) made in retaliation
for her protected disclosures , pursu ant to 5 U.S.C. § 2302 (b)(8) ; (2) made in
retaliation for her protected activities, pu rsuant to 5 U.S.C. § 2302 (b)(9 ); (3) the
decision. Greenlaw v. Department of Labor , MSPB Docket No. SF -0752 -17-0090 -I-1,
Final Order (Jan. 26, 2023).
3 A nonfrivolous allegation is an assertion that, if proven , could establish the matter at
issue. 5 C.F.R. § 1201.4 (s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appeal .
Id.
4
product of discrimination based on uniformed s ervice, pursuant to 38 U.S.C.
§ 4311 ; (4) in violation of her veterans’ preference rights, pursuant to 5 U.S.C.
§ 3330a (d)(1) ; or (5) in violation of the ba sic requirements set forth at 5 C.F.R.
§ 300.103 , pursuant to 5 C.F.R. § 300.104 (a).
¶8 The appellant seemed to assert that the agency’s decision regarding her
nonselection violat ed of the basic requirements set forth at 5 C.F .R. § 300.103 .
IAF, Tab 6 at 4; PFR File, Tab 1 at 5. As the administrative judge informed the
appellant, t o establish the Board’s jurisdiction over such a claim, an appellant
must (1) demonstrate that it concerns an “employment practice” that the Office of
Personnel Management is invo lved in administering and (2) nonfrivolously allege
that the employment practice violated one of the “basic requirements” set forth in
5 C.F.R. § 300.103 . IAF, Tab 2 at 3; see Burro ughs v. Department of the Army ,
116 M.S.P.R. 292 , ¶ 15 (2011) . The appellant has failed to make anything more
than a bare assertio n that the agency violated 5 C.F.R. § 300.103 . IAF, Tab 6
at 4; PFR File, Tab 1 at 5 . Accordingly, we find that the appellant failed to
establish her right to a jurisdictional hearing in this appeal . See Banks v.
Department of Agriculture , 59 M.S.P.R. 157 , 160 & n.3 (1993), aff’d , 26 F.3d 140
(Fed. Cir. 1994) (Table).
¶9 Moreover, a reemployed annuitant may not bring an employment practice
claim challenging a policy regarding an annuitant ’s appointment . See McKnight
v. Department of Defense , 103 M.S.P.R. 255 , ¶ 10 (2006), aff’d , 227 F. App’x
913 (Fed. Cir. 2007) ; see also 5 U.S.C. § 3323 (b)(1) (providing that an annuitant
receiving an annuit y while reemployed generally “serves at the will of the
appointing authority”). The undisputed evidence in the appellant’s termination
appeal reveals that she was receiving an annuity while employed with the agency .
0090 IAF, Tab 5 at 11. As set forth i n our Final Order regarding the appellant’s
termination appeal, the agency established that the appellant was a reemployed
annuitant, Greenlaw v. Department of Labor , MSPB Docket No. SF -0752 -17-
0090 -I-1, Final Order (Jan. 26, 2023) , and we find that the Bo ard would therefore
5
lack jurisdiction over any employment practices claim that she might have raised
in this appeal , see McKnight , 103 M.S.P.R. 255 , ¶ 10 .
¶10 Finally, the appellant asserts that she was denied discovery in her appeal.
IAF, Tab 6 at 4; PFR File, Tab 1 at 7, Tab 5 at 5. However, we find that the
appellant has failed to demonstrate how the absence of discovery prejudiced her
ability to make a nonfrivolous allegation on the dispositive jurisdictional issue .
See Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 14 (2008), aff’d ,
324 F. App’x 883 (Fed. Cir. 2009); Sommers v. Department of Agriculture ,
62 M.S.P.R. 519 , 523 (1994); 5 C.F.R. § 1201.115 (c).
¶11 Accordingly, we affirm the initial decision and dismiss the 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 to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative 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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GREENLAW_ROSEMARY_B_SF_3443_17_0089_I_1_FINAL_ORDER_1996738.pdf | 2023-01-26 | null | SF-3443 | NP |
3,707 | https://www.mspb.gov/decisions/nonprecedential/LEONARD_ANDREW_J_DA_0752_17_0354_I_1_FINAL_ORDER_1996766.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREW J. LEONARD,
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSI ON,
Agency.
DOCKET NUMBER
DA-0752 -17-0354 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew J. Leonard , Grand Prairie, Texas, pro se.
Anabia Hasan , Washington, D.C., for the agency.
Michael J. O’ Brien , New York, New York, 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 action suspending the appellant for 60 business days .
1 A nonprecedential order is one that the Board has determ ined does not add
significantly to the body of MSPB case 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
Generally, we grant petitions such as this one o nly in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
regarding the standard of proof for an affirmative defense of retaliation for
requesting an accommodation , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a GS -12 Equal Opportunity Investigator, started his
employment w ith the agency in June 2010 pursuant to a Schedule A appointment
under 5 C.F.R. § 213.3102 (u), which allows for the appointment of persons with
severe physical, psychiatric, or intellect ual disabilities. IAF, Tab 9 at 31, Tab 21
at 12. It is undisputed that the appellant has been diagnosed with bipolar disorder
and is a qualified individual with a disability. IAF, Tab 9 at 61, Tab 20 at 4, Tab
21 at 15. In an effort to control his disorder, the appellant began
electroconvulsive therapy (ECT) in December 2016. IAF, Tab 9 at 48. The
appellant returned to his position on March 20, 2017. IAF, Tab 2 at 22.
¶3 On March 27, 2017, the agency issued the appellant a notice of proposed
removal based on two specification s of a single charge of Improper Conduct.
IAF, Tab 9 at 105 -10. Specification 1 alleged that the appellant had been absent
3
without leave (AWOL) for a total of 480 hours since the pay period beginning
December 25, 2016. Id. at 105. Specification 2 alleged that the appellant failed
to follow appropriate procedures for requesting leave beginning October 18,
2016. Id. at 105 -06. The appellant provided a detailed and lengthy response to
the notice. Id. at 39 -103. He attached tw o Standard Form 50s (SF -50s)
approving his use of leave without pay (LWOP) from December 25, 2016, though
March 19, 2017. Id. at 55 -56. The deciding official upheld the charge, but
mitigated the penalty to a 60 -business -day suspension. Id. at 33-37. Th e
suspension was effective May 15, 2017. Id. at 31.
¶4 The appellant appealed the agency’s action. IAF, Tabs 1 -2. Initially, he
requested a hearing. Id. Subsequently, however, he asked that the Board decide
this matter based on the parties’ written submi ssions. IAF, Tab 11 at 3. The
administrative judge issued an initial decision finding that the agency failed to
prove both of the specifications underlying the charge. IAF, Tab 28, Initial
Decision (ID) at 9-18. She also found that the appellant proved his allegations of
disability discrimination and retaliation for having requested an accommodation.
ID at 18-24.
¶5 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has responded in opposition. PFR File, Ta b 3.
ANALYSIS
The agency failed to prove that the appellant was AWOL.
¶6 Although the agency charged the appellant with improper conduct, the
underlying specification of AWOL required that the agency prove the elements of
that offense. See Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 202 (1998)
(finding that charges should be viewed in light of the accompanying
specifications and circ umstances). T o prove an AWOL charge, an agency must
demonstrate that the employee was absent without authorization and, if the
employee requested leave, that the request was properly denied. Savage v.
4
Department of the Army , 122 M.S.P.R. 612, ¶ 28 n.5 (2015) , overruled in part by
Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23-25. The
agency has the burden of proving a cha rge by preponderant evidence. 5 C.F.R.
§ 1201.56 (b)(1)(ii).
¶7 In its petition for review, the agency asserts that it did not approve LWOP
for the appellant from December 25, 2016, through March 19, 2017. PFR File,
Tab 1. In particular, the agency reiterates its contention that th e appellant did not
contact the agency after December 20, 2016, when he requested LWOP until
December 23, 2016. Id. at 6. The agency asserts that, because the appellant did
not contact the agency during his nearly 3 -month absence, it properly charged
him as AWOL during that time. In support of its assertion, the agency submits
the appellant’s time cards from December 25, 2016, through March 18, 2017, and
argues that the time cards reflect that the appellant was placed in an AWOL
status. Id. at 10; IAF, Tab 9 at 92 -102. The agency also argues that the SF -50s
showing that the appellant was on LWOP do not show that LWOP was approved.
Rather, the agency argues that they were “placeholder[s] until disciplinary action
was taken to address [the] [a]ppellant’s extensive absenteeism.” PFR File, Tab 1
at 10.
¶8 The agency’s arguments on review fail to provide a basis for disturbing the
administrative judge’s finding that the agency approved the appellant’s request
for LWOP. ID at 11 -12. The record reflects that t he appellant notified the
agency that he would need to be on extended leave due to his ECT treatments. As
noted by the administrative judge, on December 19, 2016, the Disability Program
Manager (DPM) sent an email to the appellant, the appellant’s first -line
supervisor, and the Deputy Director of the agency’s Dallas District Office stating,
among other things, that the appellant was currently out on LWOP contemplating
further treatment due to his medical condition. ID at 6; IAF, Tab 2 at 51. The
appellan t’s first -line supervisor sent the appellant a text message on
December 20, 2016, asking if he anticipated coming in the remainder of the week,
5
and the appellant responded that he anticipated starting ECT treatments the
following day and that his absence “ could be up to six more weeks.” IAF, Tab 22
at 147. Later that same day, the appellant notified the DPM that he would be
starting his ECT treatments on December 21, 2016, and to please let him know if
the agency needed anything from him. IAF, Tab 2 at 4 8. Even if the appellant’s
December 2016 messages could not be construed as requests for LWOP, as
discussed below, the record reflects that the agency placed the appellant in an
LWOP status from December 25, 2016, until March 19, 2017.
¶9 The agency’s argume nt that the appellant was placed on AWOL during this
time period is unpersuasive. The appellant’s time cards reflect that he was
initially placed in an LWOP status from December 25, 2016, until January 21,
2017. IAF, Tab 9 at 92 -97. However, on February 2, 2017, the appellant’s
first-line supervisor sent an email requesting that the appellant’s time cards for
this period be coded as AWOL and that the appellant be placed in an AWOL
status from January 22, 2017, until February 4, 2017. Id. at 112. The ap pellant’s
time cards reflect that the appellant was directly placed in an AWOL status from
January 22, 2017, through February 18, 2017. Id. at 97-98, 112. However, they
also reflect that he subsequently was placed in an LWOP status for at least part of
the period between February 18, 2017, and March 18, 2017, and that his time
cards during this period also were subsequently amended to reflect AWOL. Id.
at 99-103.
¶10 As noted by the administrative judge, it is not unreasonable for an agency to
temporarily carry an employee on LWOP and later change his status to AWOL
when the employee failed to timely request LWOP, failed to notify the agency of
his availability to work, and failed to return to work or submit medical evidence
justifying his continued absence after the agency directed him to do so and
warned him that his failure to do so could result in disciplinary action. ID
at 11-12; Johnson v. General Services Administration , 46 M.S.P.R. 630 , 634
(1991), aff’d , 944 F.2d 913 (Fed. Cir. 1991) (Table) . Here, however, the
6
appellant informed the agency of his absence, IAF, Tab 2 at 48 -51, and he
subsequently returned to work and provided appropriate medical evidence, IAF,
Tab 2 at 55. Further, the administrative judge properly noted that the agency did
not initially place the appellant on AWOL, as it should have pursua nt to agency
policy if there was “any doubt” as to his leave request; instead, it placed him in
an LWOP status. ID at 12; IAF, Tab 22 at 33. Thus, contrary to the agency’s
argument, the appellant’s time cards do not establish that he was AWOL from
Decemb er 25, 2016, through March 19, 2017.
¶11 Rather, we agree with the administrative judge that the two SF -50s showing
that the appellant was in an LWOP status from December 25, 2016, until
March 19, 2017, are entitled to significant weight. IAF, Tab 9 at 55 -56; see ID
at 12. The first SF -50, which was approved on February 10, 2017, indicates that
the appellant was in an LWOP status from December 25, 2016, not to exceed
February 4, 2017. IAF, Tab 9 at 56. Thus, LWOP was approved after the
appellant’s superviso r’s February 2, 2017 email requesting that the appellant’s
time cards be coded as AWOL. Id. at 56, 112. The second SF -50, which was
approved on April 5, 2017, indicates that the appellant was in an LWOP status
from February 5, 2017, not to exceed March 1 9, 2017. Id. at 55. Thus, this
LWOP also was approved following the appellant’s time card entries for this
period. While the agency argues that these SF -50s served as “placeholder[s] until
disciplinary action was taken,” as stated above, the agency coul d have placed the
appellant directly in an AWOL status in accordance with agency policy. Based
on the foregoing, we find that the agency failed to meet its burden to prove that
the appellant was absent without authorization, see Savage , 122 M.S.P.R. 612,
¶ 28 n.5, and that it thus failed to prove the AWOL specification of the charge of
Improper Conduct.2
2 In its petition, the agency argues that the administrative judge misapplied the Family
Medical Leave Act (FMLA). The agency argues, among other things, that the appellant
did not work the 1,250 hours required for FMLA eligibility under 29 U.S.C.
7
¶12 Further, the agency has no t provided a basis for disturbing the
administrative judge’s well -reasoned finding that, even if the agency had not
approved the appellant’s request for LWOP, it would be unreasonable to deny his
request under the circumstances of this case. ID at 12 -13; see Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the
administrative jud ge’s findings whe n the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same). Thus, even if the agency had not approved LWOP for
the relevant period, the administrative judge properly found that the agency failed
to prove the AWOL specification because it did not establish that the leave
request was properly denied. See Savage , 122 M.S.P.R. 612, ¶ 28 n.5
The agency failed to prov e that the appellant failed to follow leave procedures.
¶13 Specification 2 of the Improper Conduct charge alleged that the appellant
failed to follow appropriate procedures for requesting leave , requiring that the
agency prove the elements of that offense. I AF, Tab 9 at 106 -07; see Otero ,
73 M.S.P.R. 198, 202 . The proposal notice stated that, from October 18, 2016,
onward, the appellant be gan informally requesting LWOP via text message. IAF,
Tab 9 at 106-07. The agency alleged that that the appellant’s LWOP request from
October 18 -26, 2016 was conditionally approved pending the receipt of
appropriate medical documentation, but that the ap pellant did not provide medical
§ 2611 (2)(A)(ii), and that the administrative judge’s analysis is inconsistent with the
Supreme Court’s analysis in Ragsdale v. Wolverine World Wide, Inc. , 535 U.S. 81
(2002) . We observe that 29 U.S.C. § 2611 (2)(A)(ii) is an FMLA Title I provision, and
that the 1,250 -hour work requirement does not apply to Federal executive agencies like
the Equal Employment Opportunity Commission, which are covered under FMLA Title
II. See generally 5 U.S.C. §§ 6381 -87. Likewise, Ragsdale was an FMLA Title I case,
and its applicability to analogous issues in FMLA Title II is unclear. Nevertheless, we
decline to reach the issue because regardless of whether the agency violate d the FMLA,
the administrative judge correctly found that the agency failed to prove its charge on
other grounds .
8
documentation to support his absence during this period. Id. at 107. The agency
also alleged that the appellant failed to provide medical certificates for his
absence from December 24, 2016, to March 17, 2017, and failed t o report for duty
without providing notice to management officials. Id. The agency stated that,
although the appellant provided medical documentation on March 22, 2017,
following his return to work, this documentation only referenced the period of
time b etween December 2, 2016, and March 17, 2017, and that the appellant
failed to provide a justification for his failure to timely submit medical
certificates “to support his excessive absenteeism beginning on October 18, 2016,
through March 17, 2017.” Id.
¶14 On petition for review, the agency asserts that the initial decision does not
have any meaningful discussion of a part of specification 2, the allegation that the
appellant did not follow appropriate procedures for requesting leave by failing to
support h is absences beginning October 18, 2016, with proper medical
documentation. PFR File, Tab 1 at 11. The agency also alleges that the
administrative judge erred in finding that the appellant properly requested leave
regarding his absence from December 24, 2 016, through March 17, 2017. Id.
at 6-7, 10 -12. The agency also argues that the appellant was on notice that he had
to submit medical documentation to support his LWOP request prior to his return
to work. Id. at 11 -12. As discussed below, the agency’s arguments do not
provide a basis for review.
¶15 To sustain a charge of failure to follow leave procedures, an agency must
show it gave proper instruction and the employee failed to follow it, without
regard to whether the failure was intentional or unintentio nal. See, e.g. ,
Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547 , 555 -57 (1996). The agency
may discipline an employee for failu re to follow leave procedures even if it
eventually approves leave and/or LWOP for the absences covering the period of
the charge of failure to reques t leave . Wilkinson v. Department of the Air Force ,
68 M.S.P.R. 4 , 6-7 (1995).
9
¶16 Here, the agency has failed to establish that the appellant was on notice of
specific procedures for requesting and supporting an LWOP request. In its notice
of proposed removal, the agency predicates its allegation of failure to follow
leave procedures on provisions of the applicable collective bargaining agreement
(CBA). IAF, Tab 9 at 107. While the agency’s notice of proposed removal cites
to CBA Section 27.0 3, that section pertains to annual leave. Id. at 15, 107.
Moreover, the notice of proposed removal also cites to CBA Section 27.17, which
relates to the Family Medical Leave Act. Id. at 19 -20. CBA Section 27.29,
which is not explicitly cited in the not ice of proposed removal, states that LWOP
is a temporary non -pay status requested by the employee and authorized at the
discretion of the employer, but it does not define any procedures for requesting
such leave. Id. at 25.
¶17 Moreover, the administrative judge found that the agency did not give the
appellant clear and consistent instructions regarding whether he needed to provide
medical documentation prior to his return to work and that the appellant acted
consistent ly with guidance from his supervisor on prior occasions.3 ID at 17. We
agree with the administrative judge that the appellant’s submission of medical
documentation on March 22, 2017 —following his return to work —was consistent
with prior guidance from his supervisors. For example, in a Septem ber 12, 2016
email, the appellant’s second -line supervisor approved the appellant’s request for
LWOP , contingent upon the appellant providing acceptable medical certification
on the day of his return to duty. IAF, Tab 21 at 92. In addition, the appellant ’s
reques t for LWOP for the period from October 18-26, 2016, was approved
3 The administrative judge considered whether the appellant had failed to follow leave
procedures as set forth by the agency. ID at 15. As noted, the agency predicated its
specification of failure to follow leave proc edures on the requirements of the CBA.
However, the administrative judge’s failure to cite to the CBA does not provide a basis
for disturbing the initial decision because, as noted above, the CBA did not notify the
appellant of any specific requirements f or requesting LWOP . See Panter , 22 M.S.P.R.
at 282 (finding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversing an initial decision).
10
contingent upon him providing acceptable medical certification within 15 to 30
days of his return to the office. IAF, Tab 22 at 149 . Thus, the record reflects
that, with respect to prior LWOP requests, the appellant’s supervisors had
allowed him to provide medical documentation supporting these requests
following his return to work.
¶18 Nor did the appellant’s supervisors notify him that he needed to submit
medical documentation prior t o his return to work to support his absence from
December 24, 2016, until March 19, 2017. On December 2, 2016, the appellant
requested LWOP, and continually requested LWOP for his absences through
December 23. IAF, Tab 22 at 141 -147. Apparently referenc ing his absences
beginning on December 2, 2016, on December 19, 2016, his supervisor asked
whether he had medical documentation to support his absence. Id. at 147. This
request did not condition grant of LWOP on the appellant’s providing acceptable
medic al certification prior to his return to work. In a December 20, 2016, text,
the appellant informed his supervisor that he would be star ting his ECT
treatments the following day and anticipated being out up to 6 more weeks, and
the appellant ’s supervisor did not notify the appellant that he needed to support
his LWOP request by providing medical documentation prior to returning to
work . Id. at 147.
¶19 Regarding the agency’s argument that the appellant did not provide medical
certificates supporting his Octobe r 16-26, 2016 absence, the administrative judge
correctly found that the record shows that the appellant submitted medical
documentation on October 25, 2016, and November 8, 2016. ID at 17; IAF, Tab 2
at 32 -36, 47. The administrative judge found that the agency failed to establish
that it informed the appellant that the documentation he submitted was
insufficient or that he would face disciplinary action if he did not produce
additional documentation. ID at 18. The agency has failed to provide a basis f or
disturbing these well -reasoned findings on review.
11
¶20 Based on the foregoing, we find that the administrative judge properly
found that the agency failed to establish its specification of failure to follow
leave -requesting procedures. Accordingly, the a dministrative judge correctly
found that the agency did not establish its charge of Improper Conduct.
The administrative judge properly found that the appellant proved that the agency
discriminated against him on the basis of disability.
¶21 As noted by the administrative judge, to establish disability discrimination
based on failure to accommodate, an employee must show that: (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2 (g); (2) he is a
qualified individual with a disability pursuant to 29 C.F.R. § 1630.2 (m); and
(3) the agency failed to provide a reasonable accommodation. ID at 19; Miller v.
Department of the Army , 121 M.S.P.R. 189 , ¶ 13 (2014). A “qualified individual
with a disability” is an individual with a dis ability who “satisfies the requisite
skill, experience, education and other job -related requirements of the employment
position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such posi tion.” 29 C.F.R.
§ 1630 .2(m). A request for LWOP for a specific period of time may be a
reasonable accommodation depending on the particular circumstances in a given
case. See generall y Equal Employment Opportunity Commission v. Journal
Disposition Corp. , No. 10 –CV–886, 2011 WL 5118735, at *4 -5 (W.D. Mich.
Oct. 27, 2011).
¶22 Here, the administrative judge found it undisputed that the appellant is a
qualified individual with a disability. ID at 19; IAF, Tab 20. The administrative
judge also found that the agency failed to take steps to accommodate the
appellant when it unilat erally revoked the appellant’s LWOP —an accommodation
it had already approved —and disciplined him for his absences. ID at 22.
¶23 On petition for review, the agency argues that the appellant never requested
LWOP as an accommodation. PFR File, Tab 1 at 16. This contention fails to
provide a basis for review because it constitutes mere disagreement with the
12
administrative judge’s well -reasoned finding that the appellant contacted the
agency’s DPM on December 9, 2016, and requested leave as an accommodation
for his medical condition. ID at 20; IAF, Tab 9 at 77. Moreover, the
administrative judge found that, following the appellant’s request for LWOP as an
accommodation, the DPM told the appellant he was on LWOP, and the appellant
was then issued SF -50s docume nting the LWOP. ID at 21 -22. Based on this
sequence of events, the administrative judge properly found that the DPM
approved LWOP as an accommodation for the appellant’s disability. Id.
¶24 Accordingly, we discern no basis for disturbing the administrativ e judge’s
well-reasoned finding that the agency failed to provide the appellant with a
reasonable accommodation. The administrative judge therefore properly found
that the appellant proved by preponderant evidence that the agency’s action was
the result o f discrimination based on disability.
The appellant proved his claim of retaliation for requesting an accommodation.
¶25 As to the appellant’s claims of retaliation for engaging in activity protected
by the Americans with Disabilities Act (ADA ), the administra tive judge analyzed
the claim as an affirmative defense of EEO retaliation under 42 U.S.C. § 2000e -
16. ID at 22; see Savage , 122 M.S.P.R. 612 , ¶ 42 . As explained below, the
administrative judge applied an incorrect standard.
¶26 Separate from its prohibitio n on status -based disability discrimination, the
ADA has an anti -retaliation provision, which prohibits discriminating against any
individual “because such individual” has engaged in protected activity. 42 U.S.C.
§ 12203 (a); Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 21
(2013). Both requesting a reasonable accommodation and complaining of
disability discrimination are activities protect ed by the ADA. Southerland ,
119 M.S.P.R. 566, ¶ 21. In Pridgen , 2022 MSPB 31, ¶¶ 44-47, the Board, relying
on the guida nce provided by the U.S. Supreme Court in University of Texas
Southwestern Medical Center v. Nassar , 570 U.S. 338 , 351 -53 (2013), found that
the “but-for” standard is applicable to ADA retaliation claims, overruling the
13
Board’s finding in Southerland . The Board also overruled the finding that an
agency can avoid liability by proving by clear and convincing evidence that it
would have taken the sam e action absent an improper motive, as such a construct
would be applicable only for a motivating factor analysis. Pridgen , 2022 MSPB
31, ¶ 47. Thus, an appellant has the burden of proving “ but-for” causation in the
first instance in an ADA retaliation claim.
¶27 The administrative judge was not aware that the “ but-for” causation
standard applied to retaliation claims under the ADA as the Board’s decision in
Pridgen was issued after the initial decision. We, therefore, have applied the
“but-for” causation standard to the facts of this case. Here, the administrative
judge found that the agency’s decision to approve the appellant’s LWOP, then
unilaterally revoke it, constituted retaliation under the ADA. ID at 23-24. Here,
we agree with the administrative judge that the appellant engaged in protected
activity by r equesting LWOP as a reasonable accommodation. The EEOC has
held that a request for reasonable accommodation is a form of protected EEO
activity. Keller v. U.S. Postal Servic e, EEOC Appeal No. 01A03119, 2003 WL
2010852 (Apr. 25, 2003). The agency approved the accommodation, and then
unilaterally revoked it and disciplined the appellant for his absences, without
providing him any prior notice of its actions or informing him if it required
additional documentation. ID at 23 -24. We find that this constitute s sufficient
evidence of pretext. Thus, we find the appellant proved by preponderant evidence
that unlawful retaliation was a “but-for” cause of the disciplinary action. We note
that although the agency asserted that the appellant’s absences “negatively
impacted Agency productivity by burdening his colleagues,” IAF, Tab 22 at 22,
the retaliation need not be the only reason for the action and may be one of
several reasons, see Bostock v. Clayton County , 140 S.Ct. 1731 , 1739 (2020).
14
ORDER
¶28 We ORDER the agency to cancel the appellant's suspension and to
retroactively restore him effective May 15, 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.
¶29 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 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 appellan t 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 amou nt of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶30 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶31 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this a ppeal 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 an d results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶32 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and a djustments resulting from a Board decision
15
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 mu st 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 DECISI ON.
You must file your motion for attorney fees and costs with the office that issued
the ini tial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a . The regulations ma y be found at 5 C.F.R. §§ 1201.201 ,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DA TE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
16
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your clai ms determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If yo u wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of you r case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your ca se, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit , which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matte r, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for th e Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protectio n Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimi nation . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 o f
18
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www .uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
19
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the 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
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 rev iew of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until noti fied to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside ea rnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CH ECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and cou rts.
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations mu st be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemploy ment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following 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. | LEONARD_ANDREW_J_DA_0752_17_0354_I_1_FINAL_ORDER_1996766.pdf | 2023-01-26 | null | DA-0752 | NP |
3,708 | https://www.mspb.gov/decisions/nonprecedential/HALTERMAN_DAVID_LIONEL_DC_0752_17_0081_I_1_FINAL_ORDER_1996881.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID LIONEL HALTERM AN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-0752 -17-0081 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Lionel Halterman , Fayetteville, North Carolina, pro se.
Jose Calvo , Esquire, and Joshua N. Rose , 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 his allegedly involuntary
retirement. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the adm inistrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material eviden ce
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113 (b).
¶2 On October 20, 2016, the agency issued a notice removing the appellant
from his GS -1862 -08 Consumer Safety Inspector position based on alleged
misconduct. Initial Appeal File (IAF), Tab 5 at 13 -17. That same day, the
appellant submitted his application fo r voluntary retirement , which became
effective on October 20, 2016 . Id. at 11, 13-14. Thereafter, the appellant filed a
Board appeal and contended that his retirement was involuntary. IAF, Tabs 1, 5,
12‑13, 15, 18. In an initial decision issued on the written record, the
administrative judge found that the appellant failed to make a nonfrivolous
allegation of jurisdiction, and he dismissed the appeal. The appellant petitions
for review of the initial decision. Petition for Review (PFR) File, Tab 1. T he
agency responds in opposition to the petition for review. PFR File , Tab 3.
¶3 In his petition for review, the appellant states that he is a disabled veteran
and was forced to retire when the agency removed him. PFR File, Tab 1 at 3. He
also states that the agency is required to provide reasonable accommodation to
disabled employees. Id. However, he identifies no error of fact or law in the
initial decision. We find that the initial decision was correctly decided for the
reasons discussed below.
3
¶4 A deci sion to retire is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of showing by preponderant
evidence that his retirement was involuntary and therefore tantamount to a forced
removal. Baldwin v. Departme nt of Veterans Affairs , 111 M.S.P.R. 586, ¶ 15
(2009) (citing Garcia v. Department of Homeland Security , 437 F.3d 1322 ,
1329 -30 (Fed. Cir. 2006) (en banc) ). The appellant provided multiple reasons
why his retirement was allegedly involuntary. First, he asserts that he retired
because his union representative led him to believe that he would lose his
retirement benefits if he were removed. IAF, Tab 18 at 3. This amounts to an
argument that his retirement was involuntary because of misinformation. A
retirement action is involuntary if the agency made misleading statements upon
which the employee reasonably relied to his detriment. Miller v. Department of
Homeland Security , 111 M.S.P.R. 325, ¶ 8 (2009), aff’d , 361 F. App’x 134 (Fed.
Cir. 2010). However, the misinformation has to come from the agency; the
agency is not responsible for misinformation that comes from third parties such as
a union rep resentative. The appellant failed to make a nonfrivolous allegation
that he retired in reliance on misinformation provided by the agency . Cf.
Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 5 (2010)
(finding that, to establish involuntariness on the basis of coercion, the appellant
must establish, inter alia, that the retirement was the result of improper a ctions by
the agency).
¶5 The appellant also alleged that he retired because the agency conspired to
remove him , which implies that he believes the removal action was without any
basis.2 IAF, Tab 18 at 3. This amounts to a claim of coercion on the basis th at
2 The appellant also contends that his mental illness and side effects from his
medication caused his alleged misconduct. IAF, Tab 18 at 3. Neither the
Rehabilitation Act of 1973 nor the Americans with Disabilities Act of 1990 immunizes
disabled employees fro m being disciplined for misconduct, provided that the agency
would impose the same discipline on an employee who is not disabled. Burton v. U.S.
4
the agency knew or should have known that the action could not be substantiated.
If the appellant can show that he retired to avoid a threatened removal action, and
if he can further show that the agency knew or should have known that the action
could not be substantiated, then his decision to retire may be considered coerced
and therefore involuntary. Harris v. Department of Veterans Affairs ,
114 M.S.P.R. 239, ¶ 8 (2010). The agency alleged that the appellant, inter alia,
brought his wife into the office , which is a secured and access -controlled facility,
without authorization to confront his supervisor, which she did, creating a
disturbance; brought his son without authorization into a poultry farm he
inspected; and poked a farm manager in the chest during a conversation, which
prompted the farm to request that the agency not send the appellant to its facility
any more. IAF, T ab 10 at 23 -24.
¶6 The appellant does not clearly dispute the agency’s version of events. In
fact, he admitted to bringing his family members into the workplace , and he
contends that any physical contact with the farm manager was accidental. IAF,
Tab 5 at 5 . The fact that the appellant has a defense —that may or may not be
successful —against the agency’s allegations of misconduct is insufficient to
establish that the agency knew or should have known that its allegations could not
be substantiated. Barthel v . Department of the Army , 38 M.S.P.R. 245 , 251
(1988) ( explaining that , to show that the agency knew or should have known that
its action could not be substantiated, the appellant must do more than merely
rebut the agency’s reasons for the action). Moreover, the appellant has an
extensive prior disciplinary record , to include five prior suspensions , all for
improper conduct . IAF, Ta b 10 at 17, 26 -27. The appellant has not shown that
the agency knew that there was no factual basis for its charges, and, assuming the
charges were sustained, removal would be within the bounds of reasonableness
for an employee with such an extensive disc iplinary record. We find that the
Postal Service , 112 M.S.P.R. 115 , ¶ 16 (2009); Laniewicz v. Department of Veterans
Affairs , 83 M.S.P.R. 477 , ¶ 5 (2009).
5
administrative judge correctly found that the appellant failed to make a
nonfrivolous allegation that his retirement was coerced.
¶7 The appellant’s remaining allegations all have to do with the state of his
mental health. Shortly after he left the agency, he was diagnosed with a mental
illness , and he asserts that he had been taking particular medication at some point.
IAF, Tab 18 at 3. He also asserts that the agency failed to address his medica l
issues and failed to off er him reasonable accommodation for his condition. Id.
¶8 By this, the appellant may be attempting to assert that his retirement was
involuntary because he was not mentally competent to make the decision to retire .
A finding that the appellant was not men tally capable of making a rational
decision when he retired would render his decision involuntary and bring his
appeal within the Board’s jurisdiction. Burks v. Department of Defense ,
70 M.S.P.R. 127 , 130 (1996). However, the fact t hat the appellant has a mental
illness and takes medication does not mean that he is or was mentally
incompetent, and he has submitted no evidence that h is condition rendered him
incapable of making rational decisions at the time of his retirement.
¶9 The appellant also may be attempting to claim that his retirement was
involuntary because the agency failed to accommodate a disability and/or the
agency subjec ted him to intolerable working conditions. Absent jurisdiction over
the underlying action, the Board lacks jurisdiction to adjudicate allegations of
discrimination. Garcia , 437 F.3d at 1342 -43. However, it is appropriate to
consider the appellant’s discrimination allegations to the extent they bear on the
question of involuntariness. Hosozawa , 113 M.S.P.R. 110 , ¶ 5. An appellant
may demonstrate that his retirement was involuntary by showing that the agency
denied a request for reasonable accommodation. Williams v. Department of
Agriculture , 106 M.S.P.R. 677 , ¶ 13 (2007) . In this case, the appellant has not
shown that he ever requested reasonable accommodation. Cf. Henson v. U.S.
Postal Service , 110 M.S.P.R. 624 , ¶ 7 (2009) (finding that, when the appellant
failed to show that he ever articulated a reasonable accommodation, he failed to
6
prove disability discrimination). Moreover, the only accommodation he
suggest ed in his appeal is that the agency train other employees how to
communicate with him. As the administrative judge noted, the appellant failed to
articulate any legal authority for the proposition that training others how to
communicate is a reasonable accommodation.
¶10 Finally, to prevail in an intolerable working conditions claim, the appellant
must prove that, under all of the circumstances, working conditions were made so
difficult by the agency that a reason able person in the employee’s position would
have felt compelled to re tire. McCray v. Department of the Navy , 80 M.S.P.R.
154, ¶ 8 (1995) (citing Heining v. General Services Administration , 68 M.S.P.R.
513, 520 (1995) ). The question of voluntariness rests on whether the totality of
the circumstances supports the conclusion that the appellant was effectively
deprived of free choice in the matter; application of this test must be gauged by
an objective standard rather than by the appellant’s purely subjective evaluatio n.
McCray , 80 M.S.P.R. 154 , ¶ 8 (citing Heining , 68 M.S.P.R. at 519 -20). The
appellant here has not explained why he believes th at his working conditions were
intolerable , aside from his allegations concerning reasonable accommodation
discussed above. He has not made out a claim that his working conditions were
so objectively intolerable that a reasonable person in his position wo uld have felt
compelled to re tire.
¶11 Accordingly, we find that the administrative judge correctly dismissed this
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
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 indicate d in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any 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 mus t file with the 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 ent itled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in sec tion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent j urisdiction.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
Decem ber 27, 2017. The All Circuit Review Act, signed into law by the President on
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information ab out the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice , and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repres entation
for Merit Systems Protection Board appellants before the 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 th e Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the cour ts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HALTERMAN_DAVID_LIONEL_DC_0752_17_0081_I_1_FINAL_ORDER_1996881.pdf | 2023-01-26 | null | DC-0752 | NP |
3,709 | https://www.mspb.gov/decisions/nonprecedential/HUGHES_KIMBERLY_K_AT_1221_16_0491_W_2_FINAL_ORDER_1996891.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIMBERLY K. HUGHES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -16-0491 -W-2
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donnie Hughes , Melbourne, Florida, for the appellant.
Patrick J. Neil , Esquire, Louisville, Kentucky, 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 appeal as untimely refiled without good
cause shown. On petition for review, the appellant argues that her incarceration,
isolation from her family, mental conditions, and hospitalization prevented her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
from timely refiling. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial deci sion 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 wi th required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 B oard does not 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 w hich option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be receiv ed by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circu it, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is a vailable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in s ecuring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants bef ore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 decis ion—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppo rtunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fi le
with the EEOC no later than 30 calendar days after your representative 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 Opportunit y Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commis sion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 Fe deral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inte rested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board app ellants before the 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
respectiv e 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 | HUGHES_KIMBERLY_K_AT_1221_16_0491_W_2_FINAL_ORDER_1996891.pdf | 2023-01-26 | null | AT-1221 | NP |
3,710 | https://www.mspb.gov/decisions/nonprecedential/MILLER_CAROLYN_AT_3443_17_0418_I_1_FINAL_ORDER_1996929.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAROLYN MILLER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-3443 -17-0418 -I-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carolyn Miller , Columbus, Georgia, pro se.
Anne M. Norfolk , Fort Benning, 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
dismissed her appeal of various agency actions for lack of jurisdiction . On
petition f or review, she appears to argue that the Board has jurisdiction over her
appeal as a mixed case and requests , for the first time, that the Board conduct
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
regulation review of 5 C.F.R. § 1201.24 (a)(7) and 5 C.F.R. § 332.406 (c). Petition
for Review File, Tabs 1, 4. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). We DENY the
appellant’s request for regulation review because she did not r aise this request
below , and, in any event, the request fails to state a basis for the Board to
exercise its regulation review authority under 5 U.S.C. § 1204 (f)(1). See 5 U.S.C.
§ 1204 (f)(2) (providing that the Board has the authority to review rules and
regulations promulgated by the Office of Personnel Management at the request of
any interested person and may declare the regulation invalid if it either has
required, or would on its face require, an employee to commit a prohibited
personnel practice) .
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 r epresent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limi ts and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your partic ular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners a nd Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website a t
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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
compete nt jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MILLER_CAROLYN_AT_3443_17_0418_I_1_FINAL_ORDER_1996929.pdf | 2023-01-26 | null | AT-3443 | NP |
3,711 | https://www.mspb.gov/decisions/nonprecedential/HAMEL_EDWARD_DE_0752_15_0039_I_2_FINAL_ORDER_1996933.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWARD HAMEL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DE-0752 -15-0039 -I-2
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
John B. Barkley , Esquire, Phoenix, Arizona, for the agency.
Jaime Diaz , El Paso , Texas , for the agency.
Charlotte Schmitt Marquez , New Orleans , Louisia na, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt 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 future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . 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 wh en the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petit ioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to expand upon the administrative judge’s analysis as to why the
appellant is not entitled to corrective action in connection with his claim of
whistleblower reprisal and to correct the penalty analysis , we AFFIRM the initial
decision.
¶2 The instant decision involves the appellant’s removal appeal.2 Hamel v.
Department of Homeland Security , MSPB Docket No. DE -0752 -15-0039 -I-1,
Initial Appeal File (IAF); Hamel v. Department of Homeland Security , MSPB
2 The appellant also has an individual right of action appeal pending in which he alleged
unlawful reprisal. See Hamel v. Department of Homeland Security , MSPB Docket
No. DE-1221 -16-0046 -W-1. Alth ough that appeal involves many of the same
underlying facts as his removal appeal, the two appeals have been and continue to be
adjudicated separately. Joining them would not expedite case processing. See 5 C.F.R.
§ 1201.36 (b) (explaining that joinder is appropriate if doing so would expedite case
processing and not adversely affect the interests of the parties).
3
Docket No. DE -0752 -15-0039 -I-2, Appeal File (AF -2).3 There is no dispute
regarding the following facts set forth in the i nitial decision.
¶3 The appellant most recently held a GS -14 Resident Agent in Charge
(Supervisory Criminal Investigator) position with the agency’s U.S. Immigration
and Customs Enforcement (ICE) , Homeland Security Investigations (HSI), in
Phoenix . AF -2, Tab 47, Initial Decision (ID) at 2. In 2009, he was involved in
an investigation with the Bureau of Alcohol, Tobacco, and Firearms (ATF) known
as Operation Fast & Furious. ID at 36. Based on his knowledge of the
investigation, the appellant disclosed tha t the ATF’s tactics included allowing
weapons purchased under suspicious circumstances to cross the United States’
border into Mexico, contrary to the agency’s mission and in violation of law. Id.
Later, in 2010, a Border Patrol Officer was murdered and weapons associated
with Fast & Furious were found at the crime scene. Id. Between January 2012
and July 2013, Department of Homeland Security (DHS) and Department of
Justice (DOJ) Offices of Inspectors General (OIG), DHS management, and
Congressional sta ff interviewed the appellant about Fast & Furious, and he
reportedly detailed his concerns with the investigation as well as his disagreement
with particular officials’ characterization of their involvement. ID at 37.
¶4 Meanwhile, in March 2013, the agency received a detailed but anonymous
complaint about the appellant’s conduct. IAF, Tab 10 at 40. After a lengthy
investigation about that complaint and other matters that arose from it, the agency
proposed his removal. Id. at 4-13. That May 2014 proposal charged the appellant
with (1) conduct unbecoming a supervisor, (2) failure to be forthright in reporting
damage to a Government -owned vehicle, and (3) lack of candor and/or failure to
3 The administrative judge dismissed the removal appeal without prejudice t o
accommodate the parties’ discovery needs. She subsequently refiled the appeal,
resulting in the two docket numbers associated with the one appeal. IAF, Tab 15; AF -2,
Tab 1.
4
cooperate with Office of Professio nal Responsibility (OPR) investigators. Id.
The deciding official removed him for the same reasons. IAF, Tab 8 at 20 -36.
¶5 After holding the requested hear ing in this removal appeal,
the administrative judge sustained the action. ID at 49. For charge (1 ), she found
that the agency proved all 10 of the underlying specifications. ID at 7 -12.
For charge (2), the administrative judge found that the agency did not meet its
burden.4 ID at 12 -15. For charge (3), she found that the agency proved
specificatio ns 4 and 6, but failed to prove specifications 1 -3, 5, or 7. ID at 15 -32.
Although the appellant presented allegations of a due process violation and
harmful procedural error, the administrative judge found that he failed to prove
either. ID at 32 -35. Concerning his retal iation affirmative defense,
the administrative judge found that the appellant presented a prima facie case of
reprisal, ID at 35 -41, but the agency met its burden of proving that it would have
taken the same action absent his protected activ ity, ID at 41 -44. Finally,
the administrative judge found that the agency proved nexus, and removal was the
maximum reasonable penalty for the specifications and charges sustained.
ID at 44-48.
¶6 The appellant has filed a petition for review. Hamel v . Department of
Homeland Security , MSPB Docket No. DE -0752 -15-0039 -I-2, Petition for Review
(PFR) File, Tab 1. The agency has filed a response.5 PFR File, Tab 4.
4 On review, neither party disputes the administrative judge’s decision not to sustain
charge (2). Therefore, we find it unnecessary to address this charge further.
5 In a September 6, 2017 notice, the Board explained that the agency could file its
response on or before September 30, 2017. PFR File, Tab 2. The agency failed to mee t
that deadline. Instead, on October 2, 2017, the agency submitted both its response and
a request for an extension. PFR File, Tabs 3 -4. Agency’s counsel declared, under
penalty of perjury, that he had been assisting in a prolonged family medical emerge ncy
throughout the agency’s response period. PFR File, Tab 3 at 3 -4. Agency’s counsel
further declared that the appellant’s counsel had no objection to the extension. Id.
Under these limited circumstances and absent any objection from the appellant, we have
considered the agency’s untimely response. See 5 C.F.R. § 1201.114 (g) (recognizing
5
The administrative judge properly sustained charge (1), conduct unbecoming a
supervisor.
¶7 For charge (1), conduct unbecoming a supervisor, the agency’s removal
action included 10 specifications concerning various matters occurring between
2010 and 2012. ID at 7 -12; IAF, Tab 10 at 6 -8. While we need not recount all of
the alleged behavior, we not e examples such as the appellant “rubbing [his]
crotch area” against a subordinate from behind, telling subordinates that he would
“skull f uck” them, asking subordinates “who wants to give me a b low job,”
saying “come suck my c ock” to them , and pulling his weapon unnecessarily in
response to agents asking questions. IAF, Tab 10 at 6 -8.
¶8 Based on the appellant’s stipulations, the administrative judge found that
the agency proved all 10 specifications and the charge. ID at 7 -12; AF -2,
Tabs 37, 39. The app ellant does not dispute that finding on review.
The administrative judge properly sustained charge (3), lack of candor and/or
failure to cooperate with OPR investigators.
¶9 The appellant does dispute the administrative judge’s findings concerning
charge (3). PFR File, Tab 1 at 7 -18. He generally argues that the administrative
judge erred by affirming specifications 4 and 6 of that charge using the same
rationale that she us ed to reject specifications 1, 2, 3, 5, and 7. Id. at 8. We are
not persuaded. Without considering whether the administrative judge properly
rejected the remaining specifications , which neither party challenges on review ,
we find that she properly sustained specifications 4 and 6.
¶10 Although the agency labeled charge (3) “lack of candor and/or failure to
cooperate with OPR investigators,” the administrative judge determined that the
latter portion merged into the former. See Gunn v. U.S. Postal Service ,
63 M.S.P.R. 513 , 516-17 (1994) (finding no error in an administrative judge’s
decision to merge a ch arge of unacceptable conduct into charges of falsification
that t he Board will excuse a late filing on review if a party shows good cause for the
delay ).
6
and providing false information in an agency investigation because the agency did
not accuse the appellant of any additional specific misconduct under the
unacceptable conduct charge ); ID at 15-16. Accordingly, she found that the
agency’s burden was to prove that the appellant exhibited a lack of candor by
knowingly providing incorrect or incomplete information. ID at 16 (citing
Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 , ¶ 17 (2016)) .
The appellant has not challenged the administrative judge’s findings in this
regard.
¶11 The administrative judge next recognized tha t each specification underlying
this charge was based on the appellant’s interview by a particular OPR
investigator. ID at 16. The appellant alleged that this individual harbored
animosity toward him because of prior conflict and that impacted his interv iew.
Id. The administrative judge agreed, based on various evidence and witness
testimony. ID at 16 -17. Therefore, the administ rative judge indicated that
she considered those circumstances while determining whether the appellant had
actually exhibited a lack of candor. ID at 17. For example, she did not sustain
one of the specifications because she found that the OPR investigator’s abrupt
line of questioning prevented the appellant from providing a complete answer.
ID at 18 -19.
¶12 The first specificati on the administrative judge did sustain was
specification 4. ID at 23 -25. According to that specification, the OPR
investigator asked the appellant if he walked into an agent’s cubicle and “act[ed]
like or actually unzip[ ped] [his] zipper, ” to which the appellant responded, “I
would describe the gesture more as adjusting or checking the zipper as opposed
to . . . mimicking.” IAF, Tab 10 at 9.
¶13 In connection with the charge of conduct unbecoming a supervisor , the
appellant stipulated that h e approached three different subordinate agent s from
behind on separate occasions , unzipped his pants, and when each agent turned
around in response to the noise of the appellant’s zipper go ing down , he laugh ed
7
and walk ed away. Id. at 6; AF -2, Tabs 37, 39 . As the administrative judge
recognized, separate from the appellant’s stipulation, the record includes evidence
documenting employees either observing or being subjected to this behavior.
ID at 24; IAF, Tab 10 at 17, 19-20, 64, 303-04, Tab 11 at 303, 4 74-76, Tab 12
at 74-76.
¶14 When an underlying misconduct charge has been proven, a lack of candor
charge also must be sustained based on the appellant’s knowing failure to respond
truthfully or completely when questioned about matters relating to the proven
misconduct. Social Security Administration v. Steverson , 111 M.S.P.R. 649 ,
¶¶ 12-13 (2009), aff’d per curiam , 383 F. App’x 939 ( Fed. Cir. 2010) (Table) ; see
Fargnoli , 123 M.S.P.R. 330 , ¶ 17 (discussing the requirement to prove intent in
connection with a lack of candor charge ). On review, even though the appellant
has admitted the underlying conduct, he argues that the administrative judge
should have interpreted his response to questioning about that conduct not as a
lack of candor, but as an attempt to qualify his answers in the face of hostile
questioning. PFR File, Tab 1 at 9 -13. We disagree.
¶15 After reviewing the associated transcript for further context, i t is evident
that the appellant was not merely attempting to provide a meaningful explanation.
IAF, Tab 11 at 40 -44. Instead, he knowingly provided inaccurate or incomplete
information. Id. Rather than acknowledge that his zipper behavior was
an inappr opriate joke or antic that he had engaged in numerous times, the
appellant falsely suggest ed that he innocuously checked his zipper, “the same way
as we all check our zipper.” Id.; see Ludlum v. Department of Justice , 278 F.3d
1280 , 1284 (Fed. Cir. 2002) (recognizing that lack of candor necessarily involves
an element of deception and “may involve a failure to disclose something
that . . . should have been disclosed . . . to make the given statement accurate and
complete ”).
¶16 The appellant separately argues that the administrative judge failed to
recognize that his response to this line of questioning was specific to a period in
8
which he was a Borde r Enforcement Security Taskforce (BEST) Group
Supervisor. PFR File, Tab 1 at 12. This argument is unavailing. The appellant
stipulated that he engaged in the conduct a t issue while a BEST Group
Supervisor. IAF, Tab 10 at 6; AF -2, Tabs 37, 39. His stat ement to the OPR
investigator should have encompassed this period, a s the OPR investigator asked
the appellant if he “ever” engaged in the conduct regarding his zipper.
IAF, Tab 11 at 40-44. Therefore, we agree with the administrative judge that the
agen cy proved specification 4.
¶17 The second specification the administrative judge sustained was
specification 6. ID at 28 -30. According to that specification, the OPR
investigator asked the appellant if he ever referred to a particular Special Agent
as “Donny ,” because that name reminded him of a mentally challenged childhood
classmate, to which the appellant responded by denying that he came up with the
nickname and indicating that he did not recall ever specifically referring to the
individual as “Donny.” I AF, Tab 10 at 10.
¶18 In connection with the charge of conduct unbecoming a supervisor ,
the appellant stipulated that he gave or condoned the use of nicknames for his
subordinates, including referring to an agent “as ‘Bobby Boucher or Donny’
because he remind ed [the appellant] of a childhood classmate who was slow and
challenged.” IAF, Tab 10 at 6 -7; AF -2, Tabs 37, 39. In addition to the
appellant’s stipulations concerning this nickname and its origin, the record
includes other supportive evidence. E.g., IAF, Tab 10 at 19 -20, Tab 12 at 39.
Most notably, the record includes an investigatory report in which the agent at
issue explained the nickname, consistent with the appellant’s stipulations.
IAF, Tab 10 at 19 -20.
¶19 On review, the appellant argues that the a dministrative judge failed to
adequately account for the fact that the agent at issue harbored personal animus
towards him. PFR File, Tab 1 at 14 -15. The appellant further suggests, as he did
in response to his proposed removal, that the nickname actuall y stemmed from a
9
misspelling on the agent’s nameplate, rather than originating from the appellant’s
memory of a mentally challenged child. Id. at 17; IAF, Tab 8 at 93. These
arguments are unpersuasive in the face of the appellant’s stipulations.
¶20 The app ellant separately suggests that he reasonably could have forgotten
about the nickname by the time of the interview in which he was asked about it.
PFR File, Tab 1 at 15. However, the administrative judge made credibility
findings to the contrary, finding it implausible that the appellant would forget the
origin of the nickname or the existence of the real Donny. ID at 29 -30 (citing
Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987)). We find no
basis for reaching a different conclusion. See Haebe v. Department of Justice ,
288 F.3d 1288 , 1299 -1301 (Fed. Cir. 2002) (explaining the deference the Board
must give to an administrative judge’s credibility findings).
The agency proved that it would have removed the appellant in the absence of his
protected whistleblowing .
¶21 The appellant’s next argument on review concerns his retaliation
affirmative defense. PFR File, Tab 1 at 20 -22. He argues that the administrative
judge erred by finding that the agency met its burden of proving that it would
have taken the same action, notwithstanding his protected whistleblowing
activity. Id. We disagree , but modify the initial decision to address this
argument and expand upon the admi nistrative judge’s findings .
¶22 Under the Whistleblower Protectio n Enhancement Act of 2012 , to prevail
on a prohibited personnel practice affirmative defense in a chapter 75 appeal that
independently could form the basis of an individual right of action ( IRA) appeal,
once the agency proves its adverse action by a preponderance of the evidence, the
appellant must demonstrate by preponderant evidence that he made a protected
disclosure or engaged in protected activity and that the disclosure or activity was
a co ntributing factor in the adverse action. 5 U.S.C. § 1221 (e)(1) , (i); Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶ 12 (2015) ; Shibuya v. Department
of Agriculture , 119 M.S.P.R. 537, ¶ 19 (201 3). If an appellant meets that burden,
10
the burden of persuasion shifts to the agency to prove by clear and convincing
evidence that it would have taken the same action in the absence of the
appellant’s protected disclosure or activity. 5 U.S.C. § 1221 (e)(2); Shannon v.
Department of Veterans Affairs , 121 M.S.P.R. 221 , ¶ 24 (2014). In determining
whether an agency has met this heightened burden, the Board will consider all
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 do not en gage in protected whistleblowing activity, but who are
otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSP B
6, ¶ 11; see Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed.
Cir. 1999).
¶23 Here, the administrative judge found that the app ellant met his burden.
ID at 35 -41. First, she found that the appellant’s disclosures about the danger and
legality of the Fast & Furious operation were protected by 5 U.S.C. § 2302 (b)(8).
ID at 36-38. She also found that the appellant’s disclosures to and cooperation
with the DOJ and DHS OIG were protected by section 2302(b)(9)(C) .
ID at 37-38.
¶24 Next, based on the knowledge/timing test, the administrative judge found
that the appellant’s prot ected activity was a contributing factor in his proposed
removal. ID at 38 -41; see Carey v. Department of Veterans Affairs ,
93 M.S.P.R. 676, ¶¶ 10 -11 (2003) (recognizing that an appellant may demonstrate
that his 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 dis closure, 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). She found that the knowledge
prong was satisfied because the entir e agency had actual or constructive
11
knowledge of the appellant’s protected activity after it was revealed in an OIG
report on the Fast & Furious operation. ID at 38 -41. She found that the timing
prong was satisfied because the agency began its investigat ion into the appellant’s
conduct around the time of the OIG report and proposed his removal within
15 months of that report. ID at 40 -41. Neither party challenges this finding on
review and we decline to disturb it.
¶25 Although the administrative judge foun d that the appellant met his burden,
she also determined that the agency proved, by clear and convincing evidence,
that it would have taken the same action, notwithstanding the appellant’s
protected activity. ID at 41 -44. First, she found that the agency ’s evidence in
support of the appellant’s removal was very strong. ID at 42. Next, she found
that there was nothing to connect the Disciplinary and Adverse Action Panel
(DAAP) that proposed the appellant’s removal with anyone who was the subject
of the a ppellant’s disclosures. ID at 43. Further, the deciding official was
altogether unaware of the appellant’s role in the Fast & Furious matter , and those
who were aware and had the most motive to retaliate were not involved in the
appellant’s removal. ID at 42 -43. Lastly, she found that the agency had similarly
removed several other employees who exhibited a lack of candor in responding to
some type of investigation.6 ID at 43.
6 As we previously noted, the third Carr factor concerns any evidence that the agency
takes similar actions against employees who do not engage in protected whistleblowing
activity, but who are otherwise similarly situated . See Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) (explaining that the agency’s
more favorable treatment of similarly situated whistleblowers is not relevant to Carr
factor 3). In the initial decision, the administrative judge did not indicate whether the
similarly situated employees she considered were non -whistleblowers. ID at 43. The
evidence she cited was the agency’s documentation of se veral other employees who
were removed for conduct similar to the appellant’s. AF -2, Tab 28 at 13 -51. The
agency’s representative submitted a statement under penalty of perjury, which the
appellant does not contest, indicating that these individuals were non-whistleblowers.
Id. at 3, 9 -10. A statement signed under penalty of perjury and not rebutted is
competent evidence of the assertions it contains. Coles v. U.S. Postal Service ,
12
¶26 On review, rather than disputing the specific findings that the
administrativ e judge did make, the appellant argues that she ignored a key point
pertaining to his reprisal claim. PFR File, Tab 1 at 20 -22. According to the
appellant, the administrative judge should have ruled on whether the anonymous
complaint about his conduct wa s likely motivated by retaliatory animus. Id.
Under this theory , the appellant suggests that if it were not for his protected
activity, there would have been no anonymous complaint, no OPR investigation
stemming from that complaint, and no removal action stemming from that
investigation. Id.
¶27 The appellant is essentially arguing that he may have been subjected to
retaliation by investigation. An investigation is not per se a personnel action but
may effectively fall within the definition of a personnel a ction, such as a
significant change in duties, responsibilities, or working conditions. Spivey v.
Department of Justice , 2022 MS PB 24, ¶¶ 10-11 (citations omitted). This is
particularly so if an investigation is one of several actions underlying a hostile
work environment . However, the appellant has not alleged that he was subject to
a hostile work environment in this case or his IRA appeal. Separately, i t is proper
to consider evidence regarding an investigation if it is so closely related to a
personnel action , such as the appell ant’s removal, that it could have been a
pretext for gathering information to retaliate for whistleblowing . E.g., Skarada v.
Department of Veterans Affairs , 2022 MSPB 17 , ¶ 18 n.4 ; Mattil v. Department of
State , 118 M.S.P.R. 662 , ¶ 21 (2012) .
¶28 To address the appellant’s argument in this context , it is worth recounting
some pertinent events that occurred during the period leading up to the
anonymous complaint . In late March 2012, one of the appellant’s subordinate s,
identified here as subordinate A, met w ith the appellant’s first -level supervisor,
the Assistant Special Agent in Charge ( ASAC ), to complain that the appellant had
105 M.S.P.R. 516 , ¶ 12 (2007). Therefore, we credit the agency’s characterization of
the comparator evidence as concerning non -whistleblowers.
13
engaged in behavior consistent with that which makes up the conduct unbecoming
charge in this appeal .7 IAF, Tab 10 at 66 -68. For example, he complained that
the appellant had proposition ed him for oral sex and rubb ed his crotch on
subordinate A . Id. at 64-71. According to subordinate A , he further complained
that the appellant was making veiled threats by repeatedly telling other employees
to search for him on the internet to aid in the appellant’s “own kind of
investigation of [the subordinate].” Id. at 68 -71.
¶29 Days after subordinate A made this complaint to the ASAC , in early
April 2012, the appellant sent a memo to the ASAC , describing how
subordinate A had exhibited performance deficiencies and misconduct. AF -2,
Tab 21 at 29 -31. In or around March 2013 , subordinate A reported that he
submitted similar complaints about the appellant’s behavior to the “ICE [office of
equal employment opportunity (EEO)] and [the] Office of Special Counsel. ”
IAF, Tab 10 at 50 -52. He reported doing so after deciding that the ASAC had not
bothered to investigate, much less remedy , his prior allegations about the
appellant. Id. at 75. The ASAC , on the other hand , indicated in a later statement
that he doubted subordinate A’s complaints and found them unspecific, and that
subordinate A’s removal was later propose d as a result of information
he disclosed to the ASAC concerning subordinate A’s own employment history,
but the proposal was later vacated over the AS AC’s apparent objections.
IAF, Tab 9 at 87 , Tab 10 at 47 -48.
¶30 It was a different complaint , dated February 2013 and reportedly received in
March 2013, that sparked the OPR investigation w hich resulted in the appellant’s
removal. IAF, Tab 10 at 15, 40. That complaint was addressed to the agency’s
OIG , the agency’s OPR, and Congress ional offices . Id. at 40. Though unsigned ,
the nature and text of the complaint strongly suggests that this complaint was
written by one of the appellant’s current or former male subordinates. Id. The
7 We have omitted any reference to this individual’s name t o protect his privacy.
14
complainant described himself as a “VICTIM/SPECIAL AGENT” of the HSI
office in Phoenix and a “JUNIOR AGENT” who was not including his name out
of fear of repris al. Id. This description is consistent with subordinate A’s status
as a relatively new employee, who sta rted with the agency in January 2012 .
Id. at 42, 47, 49. The author of the anonymous complaint also describe d himself
as a victim of the appellant’s sexual harassment of male agents , which
he indicated as happening in the presence of female agents. Id. at 40. For
example, the complainant alleged that the appellant had asked him to perform oral
sex on the appellant and had rubbed his crotch on the complainant . Id. Not only
are the incident s described in the anonymous complaint similar to those
previously described by subordinate A, but subordinate A also indicated, when
interviewed as part of the OPR investigation, that th e appellant engaged in
misconduct in front of female agents. Id. at 52 -53, 57. Elsewhere, the
anonymous complaint describes the appellant as being able to get away with
harassing his employees in this way because the appellant was a favorite of the
appel lant’s first-, second -, and third -level supervisors , including the ASAC, all of
whom the complaint identified by name and title . Id. at 40. According to the
anonymous complainant, this was illustrated by the fact that this management
chain had just promoted the appellant. Id. This allegation that the appellant was
favored and protected is also similar to the subordinate A’s description of the
appellant to OPR as one of management’s “top guys,” and his expressed hesitance
to report the app ellant’s misconduct for that reason. Id. at 67.
¶31 Subordinate A indicated that he was not the source of the anonymous
complaint. Id. at 50. Nevertheless, we find it highly likely that this anonymous
complaint was authored by him or some other male subordinate of the appellant’s
who was subjected to the appellant’s inappropriate behavior.8 That explains the
8 Although this subordinate was an approved witness, AF -2, Tab 23 at 2, he did not
testify at the hearing, AF -2, Speaker Sheets for Hearing. Our discussion of his
reporting about the appellant instead stems from the subordinate’s tr anscribed interview
15
consistency of the anonymous complaint with the numerous interviews with
the appellant’s employees about his behavior and the shared fears of him
retaliating, as the se employees believed to have happened to subordinate A .
E.g., IAF, Tab 10 at 16 -35, 50 -52, 65 -71. To illustrate with an example, one
other direct report of the appellant’s described being subjected to the same type
of “hazing” by th e appellant . Id. at 20-21. He indicated that he feared reprisal if
he complained, and nearly resigned for these reasons before ultimately
transferring to escape the appellant’s abuse. Id.
¶32 On review, t he appellant has not offered any evidence or persuasive theory
about someone other than an employee that had reported to him authoring the
anonymous complaint . PFR File, Tab 1 at 20 -22. Below, he suggested that it
may have b een his third -level supervisor , the Special Agent in Charge (SAC ).
AF-2, Tab 15 at 8 -9. The appellant advanced this theory based on assertions that
the SAC was a recipient of the appellant’s Fast & Furious disclosures, he was the
official most implicated by the disclosures, he made n egative comments about the
appellant in the aftermath, and he was involved in the appellant’s placement on
administrative leave pending removal . Id. at 8-9. The appellant presented this
theory about the SAC authoring the anonymous complaint , despite the complaint
specifically naming the SAC as an individua l who favored the appellant
and causing employees to hesitate in filing any complaint against him .
IAF, Tab 10 at 40.
¶33 We recognize , as the appellant has, that the anonymous complaint occurred
just after some select agency officials , possibly including the SAC , got a preview
with OPR investigators, in June 2013. IAF, Tab 10 at 45. The administrative judge
found that one small portion of the subordinate’s OPR testimony was not credible,
regarding a specific instance of the appellant stating that he would “ skull fuck” this
subordinate. ID at 21. Nevertheless, regardless of the subordinate’s credibility as to
this one instance, we find the testimony, generally, is evidence of the identity of the
anonymous complaint. Further, much of his other testimony was corroborated by
numerous others.
16
of OIG ’s forthcoming Fast & Furious report. AF -2, Tab 21 at 53 (final report,
dated March 22, 2013), 121 (agency’s January 17, 2013 comments provided for
the draft report). For that reason, it is within the realm of possibility that the
SAC or someone else who was not subordinate to the appellant but was
implicated by the forthcoming Fast & Furious report could have conspired against
the appellant by author ing the anonymous comp laint. But we find that highly
improbable. In the absence of specific evidence to the contrary, we find it highly
probable that th e anonymous complaint about the appellant’s behavior was
authored by those who had intimate knowledge of that behavior, had endured that
behavior , and feared reprisal for reporting that behavior .
¶34 We also find no reason to conclude that those who likely authored the
anonymous complaint were motivated by the appellant’s whistleblowing when
they disclosed their abuse at the hands of the appellant . If they even knew of the
appellant’s whistleblowing, t hese lower -level employees do not appear to have
been implicated by it. The whistleblowing occurred before some of them had
even joined the agency and the whistleblowing primarily implicated two Special
Agents in Charge or other “leadership” for allowing Fast & Furious to proceed
over the objections of lower -level agents .9 E.g., AF -2, Tab 21 at 56, Tab 26
at 5-8.
¶35 Though not specifically argued by the appellant, we have next conside red
whether any of the parties that acted on the anonymous complaint were
improperly motivated by the appellant’s whistleblowing and using the anonymous
complaint as a pretext to investigate and retaliate . See Skarada , 2022 MSPB 17 ,
¶ 18 n.4. This includes both those with OPR that decided to investigate the
9 Because we do not find that the anonymous complaint by a subordinate was motivated
by the appellant’s whistleblowing, we need not decide whether the agency could be held
responsible for the same. See Staub v. Proctor Hospital , 562 U.S. 411 , 422 n.4 (2011)
(declining to express any view as to whether an “employer would be liable if a
co-worker, rather than a su pervisor, committed a discriminatory act that influenced the
ultimate employment decision ”).
17
complaint and then did investigate, as well as the DAAP that acted upon OPR’s
referral by proposing the appellant’s removal . Below, the administrative judge
found that OPR’s own leadership initiated and co ntrolled its investigation.
ID at 43. She also found no reason to conclude that those implicated by the
appellant’s whistleblowing had spoken to the DAAP or that the DAAP was
otherwise motivated to retaliate against the appellant. Id. We modify these
findings to acknowledge that none of these individuals seem to be personally
implicated by the appellant’s whistleblowing, but they still may have harbored
some institutional motive to retaliate , which the administrative judge failed to
recognize . See Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28-29
(discussing how agency officials as representatives of its general institutional
interests may have a motiv e to retaliate, even if they were not directly implicated
by a disclosure, such as when the disclosed wrongdoing was egregious and
generated significant negative publicity). However , we have not reached a
different result as to the agency’s overall burden .
¶36 The Board does not view the Carr 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. Soto , 2022 MSPB 6 , ¶ 13. To further illustrate this point, the Board
has explained that it is not correct to state that an agency may “prevail ” on a Carr
factor, or that it must establish a Carr factor by any particular quantum of
evidence. Id. On balance, the record contains clear and convincing evidence
that the agency would have taken the same removal action in the absence of the
appellant’s protected whistleblowing. Agency officials had some motive to
retaliate, but evidence in support of th e appellant’s removal action is very strong
and the agency has removed several similarly situated non-whistleblowers. The
appellant’s suggestion that the investigation may have been a pretext for
retaliating is not persuasive, particularly because we find that the investigation
was the natural result of his subordinates complaining of sexual harassment or
18
even assault . Cf., Russell v. Department of Justice , 76 M.S.P.R. 317 , 325-28
(1997) ( granting corrective action when an employee’s removal was precipitated
by investigations that were initiated by individual s who had just days earlier been
the subject of the employee’s whistleblowi ng and there was no evidence that
these individuals referred similarly situated non -whistleblowers for
investigation ).
Removal is the appropriate penalty .
¶37 In an adverse action appeal such as this, when some but not all charges are
sustained, the Board wi ll carefully consider whether the sustained charges
merited the penalty imposed by the agency. Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 308 (1981). The Board may mitigate the agency’s penalty to the
maximum reasonable penalty so long as the agency has not indicated either in its
final decision or in proceedings before the Board that it desires for a lesser
penalty to be impo sed if fewer than all of the charges are sustained. Lachance v.
Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999).
¶38 As detailed above, the administra tive judge sustained charge (1) and all 10
of its underlying specificati ons, as well as charge (3) and 2 of its underlying
specifications. ID at 7 -12, 23 -25, 28 -30; Burroughs v. Department of the Army ,
918 F.2d 170 , 172 (Fed. Cir. 1990) (observing that when more than one event or
factual specification supports a single charge, proof of one or more , but not all, of
the supporting specifications is sufficient to sustain the charge ). The deciding
official noted that he would have demoted the appellant if the case only involved
charge (1). IAF, Tab 8 at 26. He also indicated that charge (3) was the most
serious charge, “tak[ing] the penalty from a demotion to a removal.” Id. at 25.
However, he did not explicitly state what penalty he would have selected under
the specific circumstances before us.
¶39 The administrative judge found that, contrary to the deciding official’s
determination, charge (1) would support the appellant’s removal, by itself.
ID at 46. She also disagreed with the seriousness the deciding official attached to
19
charge (3). ID at 47. Therefore, the administrative judge essentially f lipped the
seriousness afforded to each of the charges by the deciding official, then
concluded that removal was still the maximum reasonable penalty. ID at 46 -48.
¶40 On review, the appellant argues that the administrative judge’s penalty
analysis is flawed because she substituted her judgment for that of the agency.
PFR File, Tab 1 at 18 -20. We agree and modify the initial decision accordingly.
Nevertheless, we still find that removal is appropriate.
¶41 On the one hand, as the deciding official noted, the ap pellant had
approximately 18 years of outstanding service without any prior discipline.
IAF, Tab 8 at 26; see Reid v. Department of the Navy , 118 M.S.P.R. 396 , ¶ 30
(2012) (finding 18 years of service with positive performance and no prior
discipline was a mitigating factor ). On the other hand, the appellant is held to a
higher standard of honesty and integrity as a result of his law enforcement
position. See Prather v. Department of Justice , 117 M.S.P.R. 137 , ¶ 36 (2011) .
He also is held to a higher standar d as a supervisor. See Edwards v. U.S. Postal
Service , 116 M.S.P.R. 173 , ¶ 14 (2010) Further, while the deciding official
determi ned that the appellant’s conduct unbecoming would not warrant removal,
by itself, he described it as a shock to the consci ence . IAF, Tab 8 at 25. He also
indicated that the appellant’s subsequent lack of candor is quite ser ious, affecting
the value he could contribute to the agency. Id. at 25 -26. We agree on both
counts. See, e.g. , Alberto v. Department of Veterans Affairs , 98 M.S.P.R. 50 , ¶¶
7-12 (2004) (affirming the penalty of removal fo r a supervisor that exhibited a
pattern of inappropriate and offensive misconduct, including sexually insulting
jokes) , aff’d per curiam , No. 05 -3090, 2005 WL 1368150 (Fed. Ci r. June 10,
2005) ; Ludlum v. Department of Justice , 87 M.S.P.R. 56 , ¶¶ 28 -29 (2000)
(recognizing that an employee’s lack of candor is a serious offense that strikes at
the heart of the employer -employee relationship), aff’d , 278 F.3d 1280 (Fed. Cir.
2002). While the deciding of ficial suggested that the appellant had shown some
remorse, he also recognized that the appellant’s initial position was to “hedge his
20
bets” before the OPR investigators. IAF, Tab 8 at 24. According to the deciding
official, the appellant’s responses cal led into question his rehabilitation potential.
Id. at 26. Again, we agree. See, e.g ., Levinsky v. Department of Justice ,
99 M.S.P.R. 574 , ¶ 31 (2005) (finding that an appellant’s expressions of remorse
were not significantly mitigating because his responses to the allegations against
him did not appear to reflect actual contrition), aff’d , 208 F. App’x 925 (Fed. Cir.
2006).
¶42 Even though there are significant mitigating factors and the agency failed to
prove all its charges and specifications, we find that removal remains the
maximum reasonable penalty. See, e.g ., Dunn v. Department of the Air Force ,
96 M.S.P.R. 166 , ¶¶ 12 -18 (2004) (finding that removal was the appropriate
penalty for conduct unbecoming and lack of candor, even though the empl oyee
had 28 years of spotless service), aff’d per curiam , 139 F. App’x 280 (Fed. Cir.
2005). While the appellant has correctly noted that the administrative judge’s
penalty analysis was flawed, and we have modifi ed the analysis accordingly,
he has failed to identify any basis for us to conclude that a lesser penalty is
warranted.
¶43 Accordingly, we affirm the initial decision as modified herein.
NOTICE OF APPEAL RIG HTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final d ecision 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 statut e, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of availab le appeal rights, the Merit Systems Protection Board does not
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
21
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 resu lt in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropr iate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appea ls for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
22
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will ac cept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 discriminatio n claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decisi on. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
23
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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 Fe deral Circuit or any other circuit court of appeals of competent jurisdiction.
24
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
25
Contact information for the courts of appeals can be 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 | HAMEL_EDWARD_DE_0752_15_0039_I_2_FINAL_ORDER_1996933.pdf | 2023-01-26 | null | DE-0752 | NP |
3,712 | https://www.mspb.gov/decisions/nonprecedential/THEONNES_KELLY_DA_1221_17_0035_W_1_FINAL_ORDER_1997427.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KELLY THEONNES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA- 1221 -17-0035- W-1
DATE: January 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Isaac P. Hernandez, Esquire, Phoenix, Arizona, for the appellant.
Sean Andrew Safdi , Lakewood, Colorado, 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, and the appellant has filed a
cross petition for review of the initial decision, which granted in part the
appellant’s request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has d etermined does not add
significantly to the body of MSPB case 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 decisi ons. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117
(c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outco me 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 agency’s petition for review and GRANT the
appellant’s cross petition for review. Except as expressly MODIFIED by this
Final Order to clarify the basis for denying corrective action in connection with
the appellant’s allegations of hostile work environment and to grant corrective
action in connection with her 14-day suspension, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is employed as a GS- 11 Licensed Marriage and Family
Therapist with the agency’s Readjustment Counseling Service (RCS) in El Paso,
Texas. Initial Appeal File (IAF), Tab 1 at 8. On April 25, 2016, she sought
corrective action from the Office of Special Counsel (OSC) alleging that, in
retaliation for her disclosures of wrongdoing by her supervisor, disclosures
regarding poor patient care and services to a Member of Congress, supporting a
coworker’s equal employment opportunity (EEO) case, and filing an EEO and an OSC com plaint, the agency counseled her, proposed to suspend her for 7 days,
issued her a letter of admonishment, suspended her for 14 days, rated her overall
performance as “fully successful, ” rather than “outstanding,” for fiscal years (FY)
2013 through 2015, d enied her an increase in salary, disrupted the timely payment
of her salary, and subjected her to a hostile work environment from 2013 through 2016. Id. at 19-23. On August 17, 2016, OSC informed the appellant it had
3
terminated its inquiry into her allegations and notified her of her right to seek
corrective action from the Board. Id. at 81-82.
¶3 The appellant timely filed the instant IRA appeal and requested a hearing.
IAF, Tab 1. In an order and summary of a telephonic status conference, the
administrative judge found that the appellant established jurisdiction over her
IRA appeal by showing that she exhausted her administrative remedy with OSC
and by nonfrivolously alleging that she made at least one protected disclosure that
was a contributing factor in a personnel action. IAF, Tab 11 at 1-3. After
holding a hearing, the administrative judge issued an initial decision granting the
appellant’s request for corrective action over her FY 2014 and FY 2015
performance appraisals but denying corrective action regarding the other alleged
personnel actions. IAF, Tab 41, Initial Decision (ID).
¶4 The agency has filed a petition for review of the initial decision, and the
appellant has responded. Petition for Review (PFR) File, Tabs 1, 8. The
appellant has filed a cross petition for review of the initial decision, and the agency has responded. PFR File, Tabs 7, 10.
ANALYSIS
2
¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),3
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations 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 protected disclosure or activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
2 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
3 The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 112- 199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal.
4
5 U.S.C. § 2302 (a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the me rits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that a protected disclosure or
activity was a contributing factor in a personnel action taken against her, the
agency is given an opportunity to demonstrate, by clear and convincing evidence,
that it would have taken the same personnel action in the absence of the protected
disclosure or activity. 5 U.S.C. § 1221(e); Salerno , 123 M.S.P.R. 230, ¶ 5.
¶6 In the initial decision, the administrative judge found that the appellant
established jurisdiction over her IRA appeal by exhausting her administrative
remedies and by making the requisite nonfrivolous allegations. ID at 5. He
further found that she proved by preponderant evidence that all of her exhausted disclosures and activities were protected and that the agency subjected her to covered personnel actions when it proposed to suspend her for 7 days, issued her
a letter of admonishment, suspended her for 14 days, rated her as “fully
successful” rather than “outstanding” in three performance appraisals, and denied her a step increase.
4 ID at 6-18. He found, however, that the appellant failed to
establish that her written counseling, alleged salary disruption, and hostile work
environment claim were covered personnel actions. ID at 14-15, 18- 22. The
administrative judge further found that the appellant proved that her protected
4 Specifically, the administrative judg e found that the following disclosures and
activities by the appellant were protected: (1) reporting in 2013 that an electronic
management syste m lost patient information; (2) reporting to the agency’s Inspector
General and agency leaders in January 2013 that her supervisor engaged in
inappropriate financial transactions with patients; (3) reporting to her managers in
January or February 2013 that her supervisor was attempting to bribe other employee
witnesses in an EEO matter; (4) providing testimony in January 2013 supporting a
coworker’s EEO complaint; (5) filing an EEO complaint in April 2015 seeking to
remedy whi stleblower reprisal and providing testimony supporting it in October and
December 2015; (6) making multiple complaints to various members in her chain of
command from 2013 through the present regarding the hostile work environment
created by her supervisor; and (7) filing an OSC complaint alleging misconduct and
retaliation by her sup ervisor that was closed in July 2013. ID at 6-13.
5
disclosures and activities were a contributing factor in the covered personnel
actions by virtue of the knowledge/timing test. ID at 22-24. He concluded,
however, that the agency established by clear and convincing evidence that,
except for the FY 2014 and FY 2015 performance appraisals, it would have taken
the personnel actions in the absence of the appellant’s protected disclosures and activities. ID at 24-49. Accordingly, as noted above, the administrativ e judge
granted corrective action only for the FY 2014 and FY 2015 performance
appraisals. ID at 48.
¶7 On review, the appellant argues that the administrative judge erred in
finding that her hostile work environment claim did not constitute a covered
personnel action and that the agency established by clear and convincing evidence
that it would have suspended her for 14 days absent her protected activity and
disclosures. PFR File, Tab 7 at 5-15. The agency argues that the administrative
judge erred in finding that it did not meet its burden to show by clear and
convincing evidence that it would have rated the appellant “fully successful” in
FY 2014 and FY 2015 in the absence of her protected activity and disclosures.
5
PFR File, Tab 1 at 5-10.
5 On review, the agency maintains its position that the appellant’s EEO complaint
did not constitute protected activity but acknowledges that she engaged in other
protected activities and disclosures. PFR File, Tab 1 at 4 n.1. As noted in the initial
decision, the appellant’s EEO complaint alleged that she was being subjected to a
hostile work environment, in part, in reprisal for her disclosures that her supervisor
tried to bribe someone and had business transactions with patients. ID at 11; IAF,
Tab 9 at 25-26; Tab 25 at 11-12, 14, 31, 96, 162- 63, 173 -76, 263. We agree with the
administrative judge that the appe llant’s EEO complaint constituted protected activity
under section 2302(b)(9)(A)(i) . See Bishop v. Department of Agriculture , 2022 MSPB
28, ¶¶ 15-16 (explaining that p rotected activity under section 2302(b)(9)(A)(i) includes
filing an EEO complaint that seeks to remedy reprisal for disclosing information that an employee reasonably believes evidences a violation of law, rule, or regulat ion). The
parties have not challenged the administrative judge’s findings that the appellant proved
that her other disclosures and activities were protected and that the agency subjected
her to covered personnel actions when it proposed her suspension, admonished her, suspended her for 14 days, rated her as “fully successful,” and denied her a step
increase. PFR File, Tabs 1, 7-8, 10. In addition, the parties have not challenged the
administrative judge’s finding that the appellant failed to establish th at the written
6
The a ppellant failed to establish that her allegations of hostile work environment
amount to a covered personnel action.
¶8 Under both the WPEA and its predecessor, the Whistleblower Protection
Act (WPA), a “personnel action” is defined to include, among other e numerated
actions, “any other significant change in duties, responsibilities, or working
conditions[.]” 5 U.S.C. § 2302 (a)(2)(A)(xii). The legislative history of the 1994
amendment that added this provision to the WPA indicates that “any other
significant change in duties, responsibilities, or working conditions” should be
interpreted broadly, to include “any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, and
should be determined on a case- by-case basis.” 140 Cong. Rec. H11,419,
H11,421 (daily ed. Oct. 7, 1994) (statement of Rep. McCloskey), cited in
Skarada v. Department of Veterans Affairs,
2022 MSPB 17 , ¶ 14;see Savage v.
Department of the Army, 122 M.S.P.R. 612 , ¶ 23 (2015) (remanding an appeal so
that an administrative judge could address an appellant’s claim that the agenc y
subjected her to a hostile work environment under section 2302(a)(2)(A)(xii)). In
Savage, the Board stated that a hostile work environment itself may constitute a covered personnel action under the WPA. Savage ,
122 M.S.P.R. 612, ¶ 23.
Subsequently, however, the Board clarified in Skarada that, although the term
“hostile work environment” has a particular meaning in other context s,
allegations of a hostile work environment may establish a personnel action in an
counseling and salar y disruption do not constitute personnel action s under the WP EA.
Id. The parties further have not challenged the administrative judge’s determination
that the agency proved by clear and convincing evidence that it would have taken the
following actions against the appellant even absent her protected disclosures and
activities: proposed to suspend her for 7 days, issued her a letter of admonishment,
rated her overall performance as fully successful in her FY 2013 perform ance appraisal,
and denied her a step increase. Id. We have reviewed the record, and discern no basis
to disturb these well- reasoned findings. See Crosby v. U.S. Postal Servic e, 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).
7
IRA appeal only if they meet the statutory criteria, i.e., constitute a significant
change in duties, responsibilities, or working conditions. Skarada, 2022 MSPB
17, ¶ 16 (citing 5 U.S.C. § 2302 (a)(2)(A)). Thus, only agency actions t hat,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii ). Id.
¶9 In the initial decision, the administrative judge, who did not then have the
benefit of the Board’s decision in Skarada, relied, in part, on case law relevant to
establishing a hostile work environment under Title VII of the Civil Rights Act of
1964 . ID at 19-22 (citing, among other cases, Faragher v. City of Boca Raton,
524 U.S. 775 , 787- 88 (1998); Gregory v. Department of the Army , 114 M.S.P.R.
607, ¶¶ 25, 31 (2010)). In light of Skarada, however, reliance on T itle VII
standards to determine whether agency actions amount to a personnel action that
may be the subject of an IRA appeal is incorrect. See Skarada, 2022 MSPB 17 ,
¶ 16. Accordingly, we modify the administrative judge’s analysis of the
appellant’s hostile work environment claim consistent with this section, still concluding that the appellant failed to establish that the agency subjected her to a
significant change in duties, responsibilities, or working conditions within the
meaning of section 2302(a)(2)(A)(xii).
¶10 The appellant alleged below that, in retaliation for her protected activity
and disclosures, the agency harassed her and subjected her to a hostile work
environment, which involved “increased scrutiny, harsher discipline, and
generally less favorable working conditions than similarly situated employees.” IAF, Tab 22 at 4-7. At the hearing, she testified that in December 2013 her
supervisor moved her and her coworker, a Program Specialist, to an unsafe and
uncomfortable office space away from their colleagues and that the move was
supposed to be temporary but lasted for 3 years. IAF, Tab 38, Hearing Compact
Disc (HCD) (testimony of the appellant). In her closing brief, the appellant
8
generally stated that the agency subjected her to a hostile work environment and
that her office relocation changed the terms and conditions of her employment.
IAF, Tab 39 at 4-5, 25 -26. The record also contains reports from two fact- finding
investigations, the appellant’s EEO complaint and an amendment, and a transcript
of her interview with the EEO investigator, which set forth numerous specific
incidents that she alleged contributed to the hostile work environment.6 IAF,
Tab 18 at 36-37, 46; Tab 19 at 16-129; Tab 25 at 90-109, 154- 267; Tab 27 at 140.
¶11 In the initial decision, the administrative judge, relying mainly on
allegations from the appellant’s EEO matter, summarized the allegations in
support of her hostile work environment claim as follows: the agency moved her
and the Program Specialist to new offices in an isolated area that experienced
wide variations of temperature and leaks and required her to be alone when
meeting with clients, which made her feel unsafe; supervisors were rude to her,
yelled at her, accused her of writing emails that bordered on being disrespectful, and counseled her for sending an unprofessional and a disrespectful text; the agency failed to communicate with her or explain its reasoning for decisions; the
agency changed or restricted her duties without explanation, including telling her not to see clients on a weekly basis, relieving her of her duties as back- up
timekeeper, requiring her to adhere to a different standard concerning
6 In her April 6, 2015 formal EEO complaint, the appella nt alleged that the agency
retaliated against her when it admonished her on January 29, 2015, and when it
subjected her to harassment and a hostile work environment based on 34 separate
incidents occurring between January 2013 and March 2015. IAF, Tab 25 at 90-109. By
notice dated May 22, 2015, the agency’s Office of Resolution Management (ORM)
notified her that it had accepted the admonishment and hostile work environment claim based on 22 events for investigation. Id. at 119- 22. On October 7, 2015, the appellant
amended her hostile work environment claim to include an additional four events occurring in September and October 2015. IAF, Tab 27 at 140. ORM accepted the
additional events for investigation. Id. at 134- 35. After completing the investiga tive
report and supplemental investigative report, IAF, Tabs 25-27, the appellant requested a
final agency decision, IAF, Tab 9 at 58. In a June 9, 2016 final agency decision, the
agency’s Office of Employment Discrimination Complaint Adjudication determined that the appellant failed to prove any of her claims. Id. at 35-57.
9
participation in outreach, and preventing her from serving on a professional
standards board; and the agency delayed approving her requests for compensatory
time and leave under the Family and Medical Leave Act of 1993 (FMLA). ID at 19-22. The administrative judge found, however, that the appellant’s FMLA
request was actually approved less than 2 weeks after her initial request. ID
at 21. He further found that, although the appellant described a work
environment in which she allegedly was yelled at or humiliated, she proffered
little, if any, testimony or affidavits from coworkers who witnessed this hostile
behavior. ID at 20-21. In sum, the administrative judge concluded that the
agency actions alleged by the appellant were discrete, unrelated events and that,
even when considered collectively, were not so severe that a reasonable person
would believe they created an impermissible alteration in the terms and
conditions of her employment. ID at 22.
¶12 On review, the appellant does not challenge the administrative judge’s
findings regarding most of the incidents that gave rise to her harassment claim. PFR File, Tab 7. We decline to disturb these well- reasoned findings, except to
modify them to find that the appellant failed to prove the y amounted to a
significant change to her duties, responsibilities, or working conditions. Skarada,
2022 MSPB 17
, ¶ 16. The appellant argues, however, that the administrative
judge failed to properly weigh the evidence and erred in finding that her
allegations concerning a hostile work environment did not constitute a covered
personnel action. PFR File, Tab 7 at 5-7. Specifically, she reiterates her
contention that her relocation to an office away from the rest of the team for
3 years constituted a significant change to her working conditions, threatened her
safety, and interfered with her ability to perform her duties. Id. She suggests that
this relocation alone was a significant change in her working conditions.7 Id.
7 In support of this argument, the appellant states that the Board has held that a
GS-15 employee’s reassignment to a GS -5 work cubicle constituted a personnel action.
PFR File, Ta b 7 at 7 (citing Coons v. Department of the Treasury, 85 M.S.P.R. 631 ,
10
at 7. In response, the agency argues that the appellant’s office move was
voluntary and that she did not request to be moved back until June 2016 when she
found the temperature of the office unacceptable.8 PFR File, Tab 10 at 6-7. The
agency further argues that the administrative judge’s evaluation of the factual
dispute over the voluntariness of the appellant’s office relocation was a
credibility determ ination that is entitled to significant deference. Id. at 8-9.
¶13 Contrary to the agency’s argument on review, the administrative judge
did not make any credibility findings in assessing the appellant’s claim that the
agency subjected her to a significant change in working conditions and did not
make a specific finding that the appellant’s office relocation was voluntary. ID
¶ 19 (2000), overruled on other grounds by Arauz v. Department of Justice ,
89 M.S.P.R. 529 , ¶ 7 n.1 (2001)). The appellant’s description of the holding in Coons ,
however, is incomplete. In Coons , the Board found that the appellant nonfrivolously
alleged he suffered a personnel action when he was reassigned to a different job site
and placed in a position with “no meaningful duties, no telephone, no support staff, no title, no position description , no management, no expectations and no performance
plan.”
85 M.S.P.R. 631 , ¶¶ 2, 19. Because the appellant has not alleged that he r office
relocation involved any change to her position description or duties, we find that Coons is distinguishable from the instant appeal.
8 The agency also argues on review that the appellant failed to exhaust her office
relocation claim before OSC. PFR File, Tab 10 at 5. The Board has recently 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 give a more detailed account of her whistleblowing activities before the Board than she did to OSC. An appellant may demonstrate exhaustion through her initial OSC complaint, evidence that she amended the original complaint, including but
not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations, and her written responses to OSC referencing the amended allegations. She may also establish exhaustion through other sufficiently reliable evidence , such as an affidavit or a declaration attesting that she raised with OSC the
substance of the facts in the Board appeal. Id . Here , in her OSC submissions, the
appellant alleged that, beginning in 2013, the agency subjected her to a hostile work environment, harassed her, and significantly changed her work environment by subjecting her to “an unsafe and unhealthy work environment and iso[lating her] from
participation of [agency] events.” IAF, Tab 8 at 32, 75- 78, 81, 83. We find that the
appellant’s allegations to OSC were enough to provide OSC with a sufficient basis to
investigate the appellant’s office relocation.
11
at 21-22. Rather, the administrative judge found that the incidents asserted by the
appellant in support of her hostile work environ ment claim, including the office
relocation, simply did not amount to a significant change in her working
conditions. Id. Therefore, we find no merit to the agency’s argument that the
administrative judge made a credibility -based determination regarding the
appellant’s hostile work environment claim that is entitled to significant
deference.
¶14 Nonetheless, even if the agency instructed the appellant to move to the new
office or denied her request to return to the main office, she has not shown that
the agency subjected her to a significant change in her working conditions by
relocating her office. Despite her contention that her office frequently
experienced temperature and water issues, her supervisor testified that he only
received one complaint from the appellant regarding leaking in July 2015 and
several complaints regarding temperature issues in September 2016. HCD
(testimony of the appellant’s supervisor). In addition, he testified that he
promptly took action to remedy the situation by, for example, offering to have her
temporarily relocate offices and having the air conditioning unit replaced. Id.; IAF, Tab 24 at 81. Consistent with the appellant’s supervisor’s testimony, the
record contains only one email from the appellant complaining of leaks in
July 2015 and three emails regarding temperature issues from September 2016.
9
IAF, Tab 24 at 62, 73, 79- 81. In addition, the appellant returne d to the main
office building shortly after complaining about the leaks in September 2016.
HCD (testimony of the appellant); IAF, Tab 24 at 144. We find that occasional
temperature discomfort and one instance of water leaking from the ceiling over the course of 3 years did not have practical and significant effects on the overall
9 The record also contains complaints regarding the office temperatures in
January 2013. IAF, Tab 19 at 12, 120, Tab 24 at 119, Tab 25 at 107-08, 278- 79.
However, these complaints occurred before the appellant relocated.
12
nature and quality of the appellant’s working conditions. See Skarada,
2022 MSPB 17 , ¶¶ 15, 23.
¶15 The appellant also alleged that her relocated office was far away from the
main office, which allowed the agency to exclude her from information and
communication, isolated her from the rest of the staff, and placed her at risk when
she had to meet with clients alone. HCD (testimony of the appellant). Although
it is clear from the record that the appellant’s office was separate from the main
office suite and her coworkers, except the Program Specialis t, she has not
provided specific information or evidence concerning the distance between the
two places, nor has she identified any particular office information or knowledge that she did not receive due to the physical separation of her office. She testified
that, due to the distance between her office and the main office, the office staff did not tell her when her clients arrived. Id. However, she has not explained how
the unavailability of office staff to alert her to her clients’ arrival constituted a significant change to her working conditions, rather than a minor inconvenience. Thus, the appellant has not shown that her physical separation from the main
office and most of her coworkers constituted a significant change to her working conditions. See Skarada, 2022 MSPB 17
, ¶ 23 (stating that at the merits phase of
an IRA appeal, the appellant must provide sufficient information and evidence to allow the Board to determine whether the agency’s alleged action or actions were
“significant”); Shivaee v. Department of the Navy,
74 M.S.P.R. 383, 388 -89
(1997) (finding that an employee failed to nonfrivolously allege that his
relocation from a building on the naval base to a building located outside of the base constituted a personnel action because he failed to allege sufficient
information for the Board to determine whether his move was “significant,” such
as whether other employees in his position worked outside the base and whether it
was common for such employees to be moved from inside the base to outside and
vice versa).
13
¶16 In support her claim that her office location presented a safety risk, the
appellant referred to an undated and unsigned narrative assessment, which states
the following:
The Vet Center does have a lovely Marriage and Family Office,
however, its location is of some concern due to safety issues. This
office is not connected to the Vet Center and therefore, when the
[appellant] is meeting with families/couples/individuals there is no
way to assure her safety.10
IAF, Tab 24 at 223. Although this report opines that the appellant’s office
location may have presented “some concern” over safety, the appellant did not
present evidence establishing that her office was actually unsafe or that she feared
for her safety. In response to a question on cross examination at the hearing
regarding whether she liked her office location, she testified that it was a “double- edged sword” because she liked having more space but that management
used her office location as an excuse to exclude her and not to tell her when her
clients arrived. HCD (testimony of the appellant). She did not, however,
mention safety concerns in response to this line of questioning. Id.
¶17 At another point during the hearing, the appellant testified that, on one
occasio n, a veteran came into her office unannounced when she was alone and
that she felt threatened. Id. Although such occurrence is startling, it does not
establish that her office’s location presented an undue safety risk. In any event,
the appellant did not testify that she ever experienced a dangerous situation or
that her office was too far removed to call for help in the event of an emergency.
Id. Moreover, she testified that she could have met with clients in a different
location if she ever felt it was appropriate and that she relocated to the main
office area within several months after the report suggesting “some concern” about safety. Id. Thus, we find that her general allegation about safety based on
10 The appellant attributes this narrative as sessment to a July or August 2016 Site
Analysis by an RCS manager. IAF, Tab 22 at 6, Tab 39 at 10.
14
her office’s location does not constitute a significant change in her
working conditions.
¶18 In light of the foregoing, we find that the conditions alleged by the
appellant, collectively and individually, do not establish a significant change in
her working conditions. Therefore, we affirm, as modified to clarify the
applicable legal analysis and to supplement the factual findings, supra ¶¶ 14 -17,
the administrative judge’s determination that the appellant’s allegations regarding
hostile work environment do not establish a covered personnel action.
The agency failed to show by clear and convincing evidence that it would have
suspended the appellant for 14 days or given her “fully successful” summary
performances ratings in FY 2014 and FY 2015 absent her protected activity
and disclosures.
¶19 Because the appellant met her burden to prove by preponderant evidence
that she made a protected disclosure and engaged in protected activity that was a
contributing factor in the agency’s decision to take personnel actions against her,
we will order corrective action unless the agency shows by clear and convincing
evidence that it would have taken the personnel action in the absence of the
whistleblowing.11 Supra ¶ 5. 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 whistleblowing, the Board generally will consider 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 against employees who are not whistleblowers
but who are otherwise similarly situated. Soto v. Department of Vetera ns Affairs,
2022 MSPB 6 , ¶ 11; see Carr v. Social Security Administration, 185 F.3d 1318 ,
11 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 soug ht to be established.
5 C.F.R. § 1209.4 (e).
15
1323 (Fed. Cir. 1999).12 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. Alarid v. Department of the Army, 122 M.S.P.R.
600, ¶ 14 (2015). The Board must consider all the pertinent evidence, including
evidence that detracts from the conclusion that the agency met its burden. Alarid,
122 M.S.P.R. 600, ¶ 14; see also Whitmore v. Department of Labor , 680 F.3d
1353 , 1368 (Fed. Cir. 2012).
¶20 In the initial decision, the administrative judge found that the agency
proved by clear and convincing evidence that it would have taken the following
personnel actions against the appellant even absent her protected activities and
disclosures: propos al to suspend her in 2013; denial of a salary increase in
June 2013; rating her overall performance as “fully successful” in FY 2013;
issuing her a January 29, 2015 admonishment; and impos ing a 14- day suspension
based on misrepresentation in 2016. ID at 25-44, 48 -49. He concluded, however,
that the agency failed to show by clear and convincing evidence that it would
have rated the appellant as “fully successful” in FY 2014 and FY 2015 absent her
protected activities and disclosures. ID at 45-48. On review, the appellant
challenges the administrative judge’s finding regarding the 14- day suspension,
and the agency challenges his finding regarding the FY 2014 and FY 2015
performance appraisals.13 PFR File, Tab 1 at 5-10, Tab 7 at 5-15.
12 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
WPEA, Pub. L. No. 112- 199, 126 Stat. 1465, extended for 3 years in the All Circui t
Review Extension Act, Pub. L. No. 113- 70, 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 cas es with any circuit court of appeals of competent jurisdiction. See 5 U.S.C.
§ 7703 (b)(1)(B).
13 The parties do not challenge, and we discern no basis to disturb, the administrative
judge’s findi ng that the agency established by clear and convincing evidence that it
16
¶21 For the reasons that follow, we find that the agency failed to establish by
clear and convincing evidence that it would have sus pended the appellant for
14 days in the absence of her protected activities and disclosures and modify the
initial decision consistent with this section. We affirm the administrative judge’s
determination that the agency did not meet its burden to show by clear and
convincing evidence that it would have given the appellant “fully successful”
summary performance ratings in FY 2014 and FY 2015 even absent her protected
disclosures and activities.
14-day suspension
¶22 On December 3, 2015, the Associate Regional Manager for Counseling
proposed to suspend the appellant for 14 days on the basis of one charge of
“misrepresentation” supported by the following two specifications:
Specification 1: Between on or about October 1, 2014 and on or
about October 1, 2015, on multiple occasions, you inputted
inaccurate information into the [Service Activity Recording System
(SARS)] computer system regarding the number of family members
seen during client visits. The information that you provided on these
multiple occasions was knowingly false, and you provided the
inaccurate information with the intention to mislead the Agency.
Specification 2: On or about September 23, 2015, you submitted a
written statement to your supervisor [ ] in which you indicated that
the “SARS” computer system automatically “enters an ‘extra’
number or contact to the session,” or words to that effect. The information that you provided was knowingly false, and it was
provided with the intention to mislead the Agency.
IAF, Tab 9 at 126- 28. In support of its action, the agency provided copies of six
“Visit Information” pages completed by the appellant over the course of 3 days in
July 2015, each reflecting in the “#SIG/OTH” field that one more family member
would have taken the other personnel actions against the appellant absent her protected
activities and disclosures. PFR File, Tabs 1, 7- 8, 10.
17
attended the counseling session than actually attended it.14 Id. at 131- 32, 134,
136- 38.
¶23 In a written response to the proposal notice, the appellant explained that,
when entering session information into SARS, she followed the directions on the
page to hold down the control key while selecting the names of the family
members in attendance and that the system automatically filled in the #SIG/OTH
field based on the number of family members selected, erroneously adding one to
the number of individuals selected. IAF, Tab 24 at 213. She s tated that she
assumed that the field “was counting the veteran for a total count of people in the
session.” Id. The appellant further explained that she correctly filled out the
narrative section by identifying who attended the session. Id. In addition, she
submitted statements from two counselors supporting her allegation that the computer system automatically populated the #SIG/OTH field with the number of family members selected plus one. Id. at 216- 17. Specifically, a letter from a
Social Worker provided the following:
I am writing this statement to confirm that the electronic
documentation system used for RCS also known as “SARS”
automatically adds 1 person to the session reports when family
members are listed as being present. When adding a session where a
family member(s) are present, it instructs the user to press control
and to highlight each person present in the session. The system
automatically fills in the field “#sig/oth” (number of family members
in session field) with the number of people highlighted and adding
one to include the veteran. This becomes problematic when the
veteran is not involved in that specific session. To my knowledge it
has done this since this feature/field (number of family members in
session field) was added and still does currently.
Id. at 216. Another coworker’s statement explained that, “to add family members
that are in the session, we are to hold down the control key to highlight the names
14 As explained in the initial decision , the “#SIG/ OTH” field on the SARS Visit
Information page reflects the number of the veteran’s significant others attending the
session. ID at 34. For example, if the veteran attends the session alone, this field
should be “0”; if a spouse and a child at tend, this field should be “2.” Id.
18
of the family members that are in the session. In doing this, the program
automatically adds one additional number.” Id. at 217. Despite the appellant’s
explanation and statements, the Acting Regional Manager concluded in a
January 7, 2016 decision letter that there was “no indication” that the computer
system auto matically added one extra family member in the session record and
imposed the suspension. IAF, Tab 9 at 84.
¶24 In evaluating the first Carr factor, the Board assesses the strength of the
agency’s evidence in support of the charge brought against the appell ant and
considers only the evidence that was before the agency at the time it acted. See Scoggins v. Department of the Army, 123 M.S.P.R. 592
, ¶¶ 45-46 (2016)
(explaining that in evaluating the strength of the agency’s evidence in support of
its char ge, the Board considers the charge brought and not whether the agency
could have proven a charge that it did not bring); Yunus v. Department of
Veterans Affairs, 84 M.S.P.R. 78, ¶ 8 (1999) (explaining that in determining the
strength of the agency’s evidence, the Board considers the weight of the evidence
before the agency when it acted), aff’d, 242 F.3d 1367 (Fed. Cir. 2001). To
sustain its charge of misrepresentation, the agency had to prove that, as it alleged, the appellant knowin gly supplied false information with an intent to mislead the
agency. IAF, Tab 9 at 126- 28; see Boo v. Department of Homeland Security,
122 M.S.P.R. 100, ¶ 10 (2014) (discussing the elements required to prove a
charge of misrepresentation in an adverse action proceeding). Intent to mislead the agency may be established by circumstantial evidence or inferred when the misrepresentation is made with a reckless disregard for the truth or with a
conscious purpose to avoid learning the truth. Boo,
122 M.S.P.R. 100, ¶ 10.
Whether intent has been proven must be resolved by considering the totality of
the circumstances, including the appellant’s plausible explanation, if any. Id.
¶25 Here, the administrative judge found that, although the agency failed to
produce sufficiently strong evidence to support the second specification of
misrepresentation, the evidence in support of the first specification was
19
sufficiently strong to support the suspension. ID at 38-40. Specifically, he found
that the agency’s evidence established that the appellant entered inaccurate
information into SARS on at least 6 occasions in July 2015 and that, even if he
credited her explanation that a “glitch” in the computer system caused the
#SIG/OTH field to automatically populate with an incorrect number, she knew of the issue but failed to fix her entries. ID at 39. Thus, he concluded that the
appellant completed the #SIG/OTH field with, at a minimum, a reckless disregard
for the truth and that the agency’s evidence in support of the action was strong.
ID at 38-39.
¶26 The parties do not challenge the administrative judge’s determination that
the agency’s evidence in support of the second specification was weak, PFR File,
Tabs 1, 7- 8, 10, and we discern no basis to disturb this finding. The appellant
argues, however, that the administrative judge erred in finding that the agency
provided strong evidence in support of the first specification because the evidence
does not establish that she intended to mislead or deceive the agency. PFR File,
Tab 7 at 9-10.
¶27 In finding that the appellant knew that the number in the #SIG/OTH field
was incorrect when she completed the reports in July 2015, the administrative
judge relied, in part, on the appellant’s hearing testimony. ID at 39. Because the
administrative judge considered evidence that was not before the agency when it
acted and, in effect, adjudicated the reasons for the appellant’s suspension as if
this were an ot herwise appealable action, his finding regarding what she knew
when she completed the reports is not entitled to deference.
15 See Yunus,
84 M.S.P.R. 78, ¶ 14 (declining to afford deference to the administrative judge’s
15 The appellant further argues on review that the administrative judge mischaracterized
her testimony insofar as he found that she accurately entered the number of attendees in
the progress notes field because she kne w that the number in the #SIG/OTH field was
incorrect. PFR File, Tab 7 at 9-10; ID at 9. We have reviewed the appellant’s hearing
testimony and agree that the administrative judge mischaracterized this aspect of her testimony. HCD (testimony of the appellant).
20
findings regarding the first Carr factor because he considered evidence that
was not before the agency at the time it acted).
¶28 As noted above, in determining whether an appellant had the requisite intent
to sustain a charge of misrepresentation, it is appropriate to consider her plausible
explanation. See Boo, 122 M.S.P.R. 100, ¶ 10. Here, the appellant explained that
the #SIG/OTH field automatically populated after she followed the on- screen
instructions to hold down the control key while selecting the names of the family
members in attendan ce and that she “assumed” that the field represented a count
of the total number of people in the session, i.e., the veteran plus family
members. IAF, Tab 24 at 213. The appellant further provided two coworker
statements supporting her contention. Id. at 216- 17. Nothing in the agency’s
evidence refutes her plausible explanation that she did not realize that the field
was automatically populating with an incorrect number in early July 2015 or that
she should have changed it.16 We further find that the fact that the appellant
entered the correct information in the narrative section, which ultimately allowed
her supervisor to identify the discrepancy between the #SIG/OTH field and the
actual number of family members who attended the session, suggests that her
error was inadvertent rather than intentional.
¶29 In addition, the deciding official testified that, when he decided to impose
the appellant’s 14- day suspension, he had determined that the appellant was
correct that the #SIG/ OTH field would automatically populate but that, for him,
the issue was that she should have ensured the number was correct before
16 Although the proposed suspension letter states that the appellant submitted inaccurate
SARS reports between October 2014 and October 2015, t he agency’s evidentiary file
contains only six reports with allegedly inaccurate information, all of whi ch she
completed on July 1, 2, or 7, 2015. IAF, Tab 9 at 131- 32, 134, 136- 38. According to a
report of contact completed by the appellant’ s supervisor, he noticed discrepancies
between the number of family members in the #SIG/OTH field and the individual s
identified in the narrative section in the appellant’s July 2015 SARS reports and
discussed the discrepancies with her in a meeting on August 21, 2015. Id. at 140.
There is no indication, however, that he previously discussed such issues with her.
21
submitting the form. HCD (testimony of the deciding official). The deciding
official’s belief that the appellant should hav e more thoroughly reviewed her
reports to ensure that they were correct, however, does not establish that she
intentionally provided incorrect information with the intent to mislead the agency,
as expressly alleged in the charge. IAF, Tab 9 at 126; see Scoggins , 123 M.S.P.R.
592, ¶ 46.
¶30 In light of the foregoing, we find that the agency did not provide strong
evidence in support of the charge of misrepresentation and, therefore, that the
first Carr factor weighs against the agency.
¶31 When evaluating the second Carr factor, the Board will consider any motive
to retaliate on the part of the agency official who ordered the action, as well as any motive to retaliate on the part of other agency officials who influenced the
decision. Phillips v. Department of Transportation, 113 M.S.P.R. 73
, ¶ 21
(2010). In the initial decision, the administrative judge assessed the motives of
the deciding official, the proposing official, and the appellant’s supervisor, who investigated the alleged misconduct and compiled the evidence file in support of
the action. ID at 41-42. He found that the appellant’s supervisor had a strong
motive to retaliate against the appellant because her protected disclosures
implicated him and he had knowledge of the disclosures before investigating her
for misrepresentation. ID at 41. However, he found that the proposing and
deciding officials were not motivated to retaliate against the appellant. ID
at 41-42. Therefore, the administrative judge concluded that the second Carr
factor weighed in favor of the agency. ID at 42. The appellant challenges this
finding on review. PFR File, Tab 7 at 10-12.
¶32 First, we agree with the administrative judge’s determination that the
appellant’s supervisor had a strong motive to retaliate against her. ID at 41. It is
undisputed that he knew of her protected disclosures and activities and that the
agency temporarily reassigned him from his supervisory duties and proposed to
suspend him for 10 days as a result of the appellant’s disclosing his inappropriate
22
financial transactions with a patient. ID at 26, 41; IAF, Tab 19 at 4-5.
Furthermore, we defer to the administrative judge’s finding that the proposing
and deciding officials credibly testified that they were not motivated to retaliate
against the appellant. ID at 41-42. Nonetheless, we disagree with the
administrative judge’s conclusion that the second Carr factor weighs in the
agency ’s favor.
¶33 In examining retaliatory motive for an agency action, the officials
“involved” in the action may encompass more than just the proposing or deciding
officials and may include other officials upon whom the proposing or deciding
official relied for information. See Mangano v. Department of Veterans Affairs,
109 M.S.P.R. 658, ¶ 30 (2008). Here, the proposing and deciding of ficials relied
on the evidentiary package compiled by the appellant’s supervisor, including three reports of contact he personally drafted. IAF, Tab 9 at 126- 45; HCD
(testimony of the deciding and proposing officials). Moreover, in assessing the
appropri ate penalty, they considered the appellant’s prior discipline— namely, a
January 29, 2015 admonishment from the appellant’s supervisor. Id. at 126,
146- 47; HCD (testimony of the deciding official). Therefore, we find that the
appellant’s supervisor, who had a very strong motive to retaliate against her,
influenced the agency’s action. There also is ample evidence to find that some of
the appellant’s disclosures reflected poorly on the agency as a whole, as they
alleged, inter alia, that the agency lost pa tient information and that a supervisor
engaged in improper financial transactions with a patient. ID at 6-13; see
Smith v. Department of the Army,
2022 MSPB 4 , ¶¶ 28-29 (considering under the
second Carr factor whether a “ professional retaliatory motive” existed because
the significant negative publicity resulting from the disclosures reflected poorly
on the agency and its officials ). In conclusion, we hold that the sec ond Carr
factor weighs against the agency.
¶34 Regarding the third Carr factor, the administrative judge found that there
was no evidence that the agency took similar actions against similarly situated
23
nonwhistleblowers and concluded that the third Carr factor was not a “significant
factor” in his analysis. ID at 43. The appellant challenges this finding on review,
arguing that Carr factor three weighs against the agency because she provided
evidence reflecting that other employees engaged in the same condu ct but
were not disciplined. PFR File, Tab 7 at 14-15. The agency argues that the
administrative judge properly found that the third Carr factor was neutral because
the appellant’s supervisor testified that he monitored all of his counselors’ SARS
entries but had never observed another counselor engage in this type of conduct
and because the deciding official likewise testified that he had never seen this
type of conduct. PFR File, Tab 10 at 17.
¶35 As discussed above, the appellant provided the agency wit h two coworker
statements agreeing with her that the #SIG/OTH field automatically populated with an incorrect number. IAF, Tab 24 at 216- 17. In one of the statements, the
coworker observed that she was not aware of the problem until the appellant
pointed it out to her in December 2015. Id. at 217. Although we disagree with
the appellant’s contention that this evidence proves that other employees engaged in the same conduct, i.e., submitting SARS reports containing an inaccurate number in the #SIG/OTH field, it appears likely that other counselors did so. The
Board previously has 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, 2022 MSPB 4, ¶ 30 (quoting Whitmore, 680 F.3d at 1374
). The
agency provided testimony from the appellant’s supervisor and the deciding
official that they had not observed similar inaccuracies in other employees’
reports. HCD (testimony of the appellant’s supervisor and the deciding official).
However, despite having access to this information, the agency provided no
evidence of its efforts to ascertain whether other employees had engaged in the
same alleged misconduct. Under these circumstances, we find that this
Carr factor “cut[s] slightly against” the agency. See Miller v. Department of
24
Justice, 842 F.3d 1252, 1262- 63 (Fed. Cir. 2016); cf. Phillips , 113 M.S.P.R. 73,
¶ 24 (finding that an agency’s decision to direct an appellant’s reassignment
before awaiting a decision on a proposed suspension for the underlying
misconduct could be viewed as a failure to conduct an adequate investigation,
which in turn might i ndicate an improper retaliatory motive).
¶36 In sum, we find that the agency’s evidence in support of the 14- day
suspension was weak when it took the action, that the agency had a significant
motive to retaliat e against the appellant, and that it did not produce pertinent
evidence of its treatment of similarly situated nonwhistleblowers despite
indications others might have engaged in the same conduct. We therefore find
that the agency has not met its burden of proving by clear and convincing
evidence that it would have suspended the appellant for 14 days abse nt her
protected activities and disclosures.17
FY 2014 and FY 2015 performance appraisals
¶37 From FY 2012 through FY 2015, the appellant’s performance standards
included the critical elements of customer service, clinical services, and program
management/administration. IAF, Tab 17 at 48, Tab 18 at 7, 12, 18. For each
element, the possible levels of achievement are exceptional, fully successful, or
unaccept able. Id. The overall performance rating may be outstanding, excellent,
fully successful, minimally satisfactory, or unacceptable depending on the levels of achievement for each element. IAF, Tab 17 at 49, Tab 18 at 8, 13, 19. To
receive an “outstanding” overall performance rating, the achievement level for all elements must be exceptional. Id.
17 In light of this finding, we find it unnecessary to address the appellant’s argument
that the agency committed procedural and due process errors in issuing the proposed
removal and sustaining the penalty. PFR File, Tab 7 at 13-14. We also find it
unneces sary to address her argument that her supervisor was a nonwhistleblower who
was treated more favorably. Id. at 17. Finally, we do not reach the appellant’s
argument that she did not call another witness to testify regarding her supervisor’s
motive to retaliate because she incorrectly believed that he was not involved in the
suspension action. Id . at 12-13.
25
¶38 In FY 2012, the appellant’s supervisor rated her as exceptional in each
element, and she consequently received a summary performance rating of
“out standing.” IAF, Tab 17 at 48-49. In FY 2013, FY 2014, and FY 2015,
however, the appellant’s supervisor rated her as fully successful in at least one
critical element, and she therefore received a summary performance rating of
“fully successful.” IAF, Tab 18 at 7-8, 12- 13, 18- 19. The appellant argued that
the agency lowered her FY 2013, FY 2014, and FY 2015 performance ratings in
retaliation for her protected activities and disclosures. IAF, Tab 11 at 3.
¶39 In considering the appellant’s FY 2013 performance appraisal, the
administrative judge found that the first Carr factor weighed in favor of the
agency because it clearly articulated its reasoning for not rating the appellant
exceptional in, at least, the customer service critical element, which was
sufficient to justify an overall “fully successful” performance rating. ID at 44. In
so finding, he relied on the appellant’s supervisor’s testimony that, in rating the
appellant as “fully successful” in all four elements for FY 2013, he considered the
following: the acting team leader counseled the appellant for disrespectful
conduct in February 2013; her case management numbers were among the lowest
in the office; and she failed to stop a heated discussion while she was in charge of
a staff meeting.18 Id.; IAF, Tab 25 at 290- 91. The administrative judge also
found that the third Carr factor weighed in favor of the agency, observing that the
appellant and her supervisor both testified that, in FY 2013, only one employee
received an overall performance rati ng better than “fully successful.” ID at 47.
Although the administrative judge found that the second Carr factor weighed
against the agency because, as discussed above, the appellant’s supervisor had a
significant motive to retaliate against her, he concluded that the agency
established by clear and convincing evidence that it would have rated the
18 On February 5, 2013, the acting team leader issued the appellant a written counseling
regarding an unprofessional and a disrespectful text message. IAF, Tab 17 at 39-40.
26
appellant as “fully successful” in FY 2013 even absent her protected activities
and disclosures. ID at 48.
¶40 Regarding the FY 2014 and FY 2015 performance appraisals, the
administrative judge found that the agency failed to produce sufficient evidence
supporting the ratings and that the first Carr factor therefore weighed against the
agency. ID at 45-47. For FY 2014, he observed that the appellant’s supervisor
rated her as exceptional in all elements except for the critical element of customer
service, in which he rated her as “fully successful. ” ID at 45; IAF, Tab 18
at 12-13. The administrative judge concluded that the agency produced “little, if
any” evidence supporting this rating and that the appellant’s self -appraisal
provided “uncontroverted evidence” supporting a higher rating in the customer
service critical element. ID at 45. For FY 2015, the administrative judge
observed that the appellant’s supervisor rated her as fully successful in the
critical elements of customer service and clinical services but that the agency
failed to produce any evidence supporting these ratings. ID at 45-46; IAF, Tab 18
at 18-19. He found that the second Carr factor likewise weighed against the
agency because, as discussed above, the appellant’s supervisor had a strong
motive to retaliate against her and his supervisors, who approved the rating,
similarly had a motive to retaliate. ID at 46-47. Lastly, the administrative judge
found that the record did not contain sufficient evidence concerning actions taken
against similarly situated nonwhistleblowers and that the third Carr factor
was not a significant factor in his analysis. ID at 47-48. The administrative
judge found, therefore, that the agency failed to show by clear and convincing
evidence that it would have rated the appellant as “fully successful” in FY 2014
and FY 2015 absent her protected disclosures and activities. ID at 48.
¶41 On review, the agency challenges the administrative judge’s finding
regarding the first Carr factor in his consideration of the FY 2014 and FY 2015
performance appraisals, arguing that he failed to consider relevant evidence and
27
ignored the fact that agency regulations require specific evidence of achievement
supporting a higher than “fully successful” rating.19 PFR File, Tab 1 at 5-11.
¶42 As the agency points out, its guidance regarding performance ratings
provides that an employee’s performance must “exceed[] normal expectations” to
justify an exceptional level of achievement for a particular element. PFR File,
Tab 1 at 6; Veterans Administration Handbook 5013, Section I-2. However,
when, as here, an appellant establishes a prima facie case of whistleblower reprisal, the agency bears the burden to clearly and convincingly establish that it
would have taken the same action in the absence of her protected activities and disclosures. Supra ¶ 5. Therefore, notwithstanding the high threshold for an
employee to achieve an exceptional level of achievement in a particular element,
the agency must come forward in this context with sufficient evidence to support its giving the appellant lower ratings in the critical elements of clinical and custom er services than she previously received.
¶43 As to the FY 2015 performance appraisal, the agency argues that the
administrative judge erred in disregarding the appellant’s January 29, 2015
admonishment, which establishes that her performance did not “far exceed normal
expectations.”
20 PFR File, Tab 1 at 9. We agree with the administrative judge,
however, that the agency failed to produce any evidence showing that the appellant’s supervisor considered the admonishment when rating the appellant for
FY 2015. ID at 46 n.18. We find, though, that the mere existence of the
admonishment, which relates to the customer service critical element, provides
some evidence in support of the appellant’s fully successful rating in the customer service element for FY 2015.
19 The agency does not challenge, and we find no basis to disturb, the administrati ve
judge’s determination that the second Carr factor weighs against the agency and that
the third Carr factor is essentially neutral. ID at 46-48; PFR File, Tab 1.
20 On January 29, 2015, the appellant’s supervisor admonished her for an unreasonable
delay in carrying out instructions and refusing to carry out a proper order. IAF, Tab 9
at 146-47.
28
¶44 Regarding the FY 2014 performance appraisal, the agency argues that the
administrative judge failed to consider the appellant’s supervisor’s EEO affidavit,
which, according to the agency, identified specific deficiencies in the appellant’s performance for FY 2013 and FY 2014. PFR File, Tab 1 at 6-7. In the
appellant’s supervisor’s October 28, 2015 EEO affidavit, he stated that he was the
rating official for the appellant in both FY 2013 and FY 2014 and then appeared
to discuss only the appellant’s FY 2013 performance appraisal. IAF, Tab 25
at 289. Specifically, he stated that the rating period went from October 2012 to
September 2013 and that the appellant received a written admonishment from the
acting team leader in February 2013 for unprofessional and disrespectful conduct,
had a “heated discussion” during a meeting on an unspecified date, had low
numbers of case management for an unspecified time period, and was
disrespectful to her coworkers. Id. at 289-91. He stated that the only person who
received a higher rating “[t]hat year” was the individual who served as acting
team leader during his absence. Id. at 291. It is undisputed that this individual
served as acting team leader from January through June 2013. IAF, Tab 17 at 5,
Tab 29 at 5. As discussed above, the administrative judge considered these
performance deficiencies in finding that the first Carr factor weighed in favor of
the agency for the FY 2013 performance appraisal. ID at 44; IAF, Tab 25
at 289- 91; HCD (testimony of the appellant’s supervisor). We discern no merit to
the agency’s argument on review that the above statements pertained to the appellant’s performance in both FY 2013 and FY 2014. PFR File, Tab 1 at 7.
Therefore, we find that the administrative judge properly considered these statements in connection with the FY 2013 performance appraisal. ID at 44.
¶45 The agency also argues that the administrative judge failed to consider the
appellant’s supervisor’s hearing testimony, during which he identified specific deficiencies in the appellant’s performance from 2013 through 2015. PFR File,
Tab 1 at 6. At the hearing, the appellant’s supervisor testified that he rated the
appellant as fully successful because she was “written up” at some point and,
29
during an unspecified time period, had low case management numbers. HCD
(testimony of the appellant’s supervisor). We discern no basis to disturb the
administrative judge’s finding that this testimony corresponded to the appellant’s February 2013 written counseling for unprofessional and disrespectful conduct
and the low case management numbers for the same year as referenced in the appellant’s supervisor’s EEO affidavit. IAF, Tab 17 at 39-40, Tab 25 at 289- 91.
Therefore, we find that the administrative judge properly considered this
testimony in evaluating the appellant’s FY 2013 performance appraisal. ID at 44.
¶46 The agency further argues that the administrative judge improperly failed to
consider the January 2017 fact- finding report, which “could have” allowed the
administrative judge to find that the appellant’s FY 2014 and FY 2015 summary
ratings were justified. PFR File, Tab 1 at 6-7; IAF, Tab 30. In particular, the
agency states that the fact -finding report contains statements by the appellant’s
supervisor concerning “long- standing noncompliance by the appellant” and “her
demeaning and offensive interactions with other staff” and that his opinions are reinforced by other employees. Id. Although the fact- finding report contains a
number of statements by coworkers indicating that it was difficult to work wit h
the appellant, all of the statements were given in January 2017 and none of them
refer to her behavior or performance in FY 2014 or FY 2015. IAF, Tab 30
at 7-13. Because the January 2017 fact -finding report postdates the appellant’s
FY 2014 and FY 2015 performance appraisals by several years and is not relevant
to the appellant’s performance or behavior in FY 2014 or FY 2015, the
administrative judge properly did not consider it in assessing the strength of the
agency’s evidence. IAF, Tab 30; see Yunus, 242 F.3d at 1372
.
¶47 After weighing all of the pertinent evidence, including the admonishment,
against the agency’s significant motive to retal iate against the appellant, we agree
with the administrative judge’s determination that the agency did not establish by
clear and convincing evidence that it would have given the appellant the same summary performance ratings in FY 2014 and FY 2015 in the absence of any
30
whistleblowing.21 See Rumsey v. Department of Justice, 120 M.S.P.R. 259,
¶¶ 35-38 (2013) (finding that the agency failed to meet its burden to demonstrate
independent causation for rating an employee’s performance as “successful” when
the rating was “somewhat inconsistent” with the agency’s perception of the
employee’s performance in the recent past and the rating official did not provide
any explanation as to why she rated the employee’s performance as “successful”
rather than some other rating).
CONCLUSION
¶48 For the foregoing reasons, we find that the appellant is entitled to corrective
action under 5 U.S.C. § 1221 (g)(1) in connection with her 14- day suspension and
her FY 2014 and FY 2015 performance appraisals.
ORDER
¶49 We ORDER the agency to provide the appellant with relief such that she is
placed as nearly as possible in the same situation she would have been in had the
agency rated her as “outstanding” in FY 2014 and FY 2015 and not suspended her
for 14 days. 5 U.S.C. § 1221 (g)(1)( A)(i); 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.
¶50 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 o f 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
21 Although the appellant’s 14- day suspension resulted from her alleged falsified SARS
submissions during FY 2015, her supervisor testified that he did not low er her
administration/program management rating to account for this alleged misconduct in
her FY 2015 performance appraisal because, when he rated her, he had not yet
completed his investigation. HCD (testimony of the appellant’s supervisor).
31
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.
¶51 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).
¶52 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 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).
¶53 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above.
NOTICE TO THE APPELLANT 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
32
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAY S OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUEST CONSE QUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file
your motion with the office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate a nd take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302
(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
33
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG HTS22
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summar y of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
22 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.
34
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 decision. If the action involves a claim of
35
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court- appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. S ee
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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
36
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.23 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
23 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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 Ac t is retroactive to November 26, 2017. Pub. L. No. 115- 195,
132 Stat. 1510.
37
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. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551
for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER 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 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. | THEONNES_KELLY_DA_1221_17_0035_W_1_FINAL_ORDER_1997427.pdf | 2023-01-26 | null | DA- | NP |
3,713 | https://www.mspb.gov/decisions/nonprecedential/HENDERSON_SIM_AT_0831_15_0578_I_1_FINAL_ORDER_1996187.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SIM HENDERSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -15-0578 -I-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sim Henderson , Auburn, Alabama, pro se.
Thomas Styer , 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 under the doctrine of collateral estoppel . For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to 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
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good c ause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 On May 15, 2015, t he appellant filed an appeal seeking to challenge the
June 18, 1999 reconsideration decision of Office of Personne l Management
(OPM) denying his application for disability retirement benefits under the Civil
Service Retirement System as untimely filed. Initial Appeal File (IAF), Tab 1.
The administrative judge issued an initial decision that dismissed the appeal
based on the doctrine of collateral estoppel due to t he fact that the appellant had
filed an appeal of the same action on October 4, 2001 , which was dismissed on
December 10, 2001, as untimely filed without a showing of good cause.2 On
September 22, 2004, the Board denied the ap pellant’s petition for review of the
initial decision . Henderson v. Office of Personnel Management , MSPB Docket
No. AT -0831 -02-0037 -I-1, Final Order (Sept. 22, 2004).
¶3 In this appeal, the initial decision informed the parties that it would become
final, unless either party filed a petition for review by September 4, 2015. IAF,
Tab 11, Initial Decision (ID) at 4. The appellant, however, did not file his
petition for review until almost 1 year and 10 months later, on July 17, 2017.
Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date
an initial decision is issued . 5 C.F.R. § 1201.114 (e). The Board will waive this
time limit only upon a showing of good cause for the delay in filing. 5 C.F.R.
§§ 1201.12 , 1201.114(f). To establish good cause for t he untimely filing of an
2 Henderson v. Office of Personnel Management , MSPB Docket No. AT -0831 -02-0037 -
I-1, Initial Decision (Dec. 10, 2001).
3
appeal, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case . Alonzo v. Department of the Air
Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship t o his inability to timely file his petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 116 7 (Fed. Cir. 1996)
(Table). Here, when the appellant filed his petition on July 17, 2017, the Office
of the Clerk of the Board notified him in a letter dated July 20, 2017, that his
petition was untimely and enclosed a “Motion to Accept Filing as Timely o r
Waive Time Limit ” form, and advised the appellant that the Board might issue an
order dismissing his petition as untimely if he did not submit the form, an
affidavit, or a sworn statement. PFR File, Tab 2. The appellant failed to respond.
¶5 While the appellant is apparently acting pro se, that fact alone cannot
overcome his filing delay and the absence of evidence showing due diligence.
De La Cruz Espan v. Office of Personnel Management , 95 M.S.P.R. 403, ¶¶ 6-7
(2004). Because the record reveals that the appellant (1) was notified of the time
limit for filing a petition for review, (2) was provided the opportunit y to explain
his untimely filing and advised of what he had to submit to support a motion to
accept his filing as timely or to waive the time limit, and (3) failed to comply
with the Board’s instructions on timeliness, the Board finds that the appellant ha s
failed to demonstrate due diligence or ordinary prudence which would excuse his
late filing. Therefore, the Board finds no good cause exists for the filing delay.
¶6 Accordingly, we dismiss the petition for review as untimely filed. This is
the final deci sion of the Merit Systems Protection Board regarding the timeliness
4
of the petition for review.3 The initial decision remains the final decision of the
Board regarding the dismiss al of the appeal under the doctrine of collateral
estoppel .
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Nevertheless, we have reviewed the appellant’s claim that he is requesting another
opportunity to appeal the dismissal of his untimely filing of his claim for retirement
benefits. PFR File, Tab 1. The appellant asserts that he should be allowed to appeal
the Board’s decision because his medical records show tha t he was at the Veterans
Administration Hospital for psychiatric care. Id. However, while the appellant
contends that his medical records show that he was unable to timely file his request to
OPM for ret irement benefits within the 1-year filing deadline after his separation from
Federal employment in 1991, he has provided no evidence or argument to show good
cause for his untimely filing of his petition for review in this appeal. Id.
4 Since the issuance of the initial decision in this matter, the Boar d may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs , or other security. See
42 U.S.C. § 2000e -5(f) 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
7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chall enge 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 ei ther with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 “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 | HENDERSON_SIM_AT_0831_15_0578_I_1_FINAL_ORDER_1996187.pdf | 2023-01-25 | null | AT-0831 | NP |
3,714 | https://www.mspb.gov/decisions/nonprecedential/BOEHNING_RICHARD_J_DA_4324_16_0126_I_1_FINAL_ORDER_1996203.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD J. BOEHNING,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-4324 -16-0126 -I-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard J. Boehning , Tomball, Texas, pro se.
Katherine Bolton , 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 as settled his appeal alleging that the agency violated his rights under
the Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA). For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown for the delay . 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant , a GS -13 Special Agent in the Houston office of the agency’s
Bureau of Alcohol, Tobacco, and Firearms, alleged that the agency violated his
rights under USERRA when it denied him the assignment of his forme r
Government -owned vehicle, singled him out for a n undesirable work detail , and
allegedly took improper actions regarding his performance rating after he
returned from uniformed service . Initial Appeal File (IAF), Ta bs 2, 8, 13, 16.
The administrative judge found that the appellant established jurisdiction over the
appeal. IAF, Tab 16. The parties subsequently entered into a settle ment
agreement. IAF, Tab 15. They submitted the ir agreement to the Board for
enforc ement purposes , and the administrative judge found that the agreement
appeared lawful on its face, the parties had freely entered into it, and they
understood its terms. IAF, T ab 17, Initial Decision (ID) . On January 28, 2016,
the administrative judge issued an initial decision dismissing the appeal as
settled . Id.; see 5 C.F.R. § 1201.41 (c)(2).
¶3 On November 16, 2016, t he appellant filed a petition for review. Petition
for Review (PFR) File, Tab 1. T he Clerk of the Board informed the appellant that
his petition for review was untimely filed because it was not filed on or before
March 3, 2016. PFR File, Tab 2 at 2. The C lerk also notified the appellant that
he must file a motion, signed under penalty of perjury, or an affidavit showing
either that his petition was timely filed or that good cause exist ed to waive the
filing deadline. Id. On December 16, 2016, the appellant filed a motion to waive
or set aside the time limit for g ood cause. PFR File, Tab 5. The agency responds
in opposition , and the appellant provides a reply to the agency’s response. PFR
File, Tabs 6-7.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A petition for review must be filed within 35 days after the date of issu ance
of the initial decision , or, if the petitioner shows that the initial decision was
received more than 5 days after the date of issuance, within 30 days after the date
the petitioner received the initial decision. 5 C.F.R. § 1201.114 (e). The Board
issued the initial decision in this appeal on January 28, 2016. ID at 1. The
appellant does not contend that he received the initial decision more than 5 days
after its issuance, so his petition for review needed to be filed within 35 days of
the issuance of the initial decision , i.e., on or before March 3, 2016. 5 C.F.R.
§ 1201.114 (e). The appellant’s petition for review is postmarked No vember 19,
2016 , making it over 8 months late . PFR File, Tab 1. The date of a filing
submitted by mail is determined by the postmark date. 5 C.F.R. § 1201.4 (l).
¶5 In his motion on the timeliness issue, the appellant asserts that his
representative reneged on their side agreement for him to pay the appellant
$1,000.00 out of the amount of attorney fees paid under the settlement agreement.
PFR File, Tab 5 at 5. He also asserts that he filed a March 31, 2016 complaint
with the Tennessee Board of Professional Responsibility (TBPR) , alleging that
his representative engaged in unethical conduct and that he may have been
suspended from the practice of law while representing him. Id. The appellant
argues that he did not timely file his petition for review because the TBPR did not
complete its investigation of his representative until November 14, 2016 , which
confirmed that his representative was suspended from practicing law while
representing him . Id. He claims that he immediately thereafter contacted the
Board’s regional office, as well as the agency’s representative, to learn what
options were available to have the case reviewed. Id. at 6-7. He filed his petition
for review by mail 5 days later. PFR File, Tab 1.
¶6 The Board will waive the time limit for filing a petition for review only on
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, a party must show that he exercised
4
due diligence or ordinary prudence under the particular circumstances of the case.
Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 5 (2014); Alonzo
v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine if an
appellant has shown good cause, the Board will consider the length of the delay,
the reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond h is control that affected h is ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to h is inability to timely file h is 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).
¶7 As no ted above, the appellant’s petition for review is untimely filed by over
8 months, which is a significant delay. See Terrell v. U.S. Postal Service ,
114 M.S.P.R. 38 , ¶ 9 (2010) (finding that a 42 -day delay is significant); Summers
v. U.S. Postal Service , 87 M.S.P.R. 403 , ¶¶ 6, 12 (2000) (finding that a delay of
nearly 1 month and a delay of 15 days are significant), aff’d , 25 F. App’x 827
(Fed. Cir. 2001) (Table) . Moreover, the appellant’s argument s that his
representative breached their side agreement an d was suspended from the practice
of law while rep resenting him do not establish good cause for his untimely filing
because the appellant is responsible for the errors of his chosen representative .
Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). Further, the
appellant’s assertion s that his representative misrepresented his status as an
attorney and failed to file a response to the ag ency file below , while unfortunate,
do not establish good cause for his delay in filing. PFR File, Tab 7 at 5; see
Hatcher v. U.S. Postal Service , 27 M.S.P.R. 471 , 472 (1985) (finding that the
appellant’s assertion that his former representative misrepresented himself as an
attorney and had provided untimely, ineffective, and incompetent representation
did not show good cause for the Board to waive its regulatory deadline for filing a
petition for review).
5
¶8 Finally , we find that the appellant acted in a less than diligent manner
when, after having l earned in March 2016 that his representative may have been
suspended from the practice of law, he nevertheless waited until the following
November to file his petition for review. PFR File, Tab 1, Tab 5 at 5 ; see Alonzo ,
4 M.S.P.R. at 184. Indeed, even i f the appellant could establish that his otherwise
diligent efforts to prosecute his appeal were thwarted by the negligence or
malfeasance of his representative, it would not excuse th e over 8 months that he
allowed to elapse after he first learned of his representative’s alleged misconduct
and the time he filed his petition.2 E.g., Williams v. Department of Defense ,
83 M.S.P.R. 519, ¶ 9 (1999) , aff’d, 243 F.3d 567 (Fed. Cir. 2000) (Table) .
¶9 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay . This is the final decision of the Merit Systems
Protection Board regarding the timel iness of the petition for review. The initial
decision remains the final decision of the Board regarding the dismissal of the
appeal as settled.
2 The appellant also has filed a motion for leave to submit newly acquired evidence.
PFR File, Tab 8. Pleadings allowed on review include a petition for review, a cross
petition for review, a respo nse to a petition for review, and a reply to a response to a
petition for review. 5 C.F.R. § 1201.114 (a). No other pleadings will be accepted
unless the party files a motion with and o btains leave from the Clerk of the Board.
5 C.F.R. § 1201.114 (a)(5) . Such a motion must describe the nature of and need for the
pleading. Id. In his motion, the appellant proposes to submit new evidence reflecting
that the TBPR disbarred his representative on June 16, 2017. PFR File, Tab 8 at 4.
Considering our finding herein that the appellant acted in less than a diligent manner by
wait ing 8 months after he learned of his representative’s alleged misconduct to file his
petition for review, we deny the appellant’s motion. The Board will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight to
warrant a different outcome. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349
(1980 ).
6
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
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 r eview of certain
whistleblower claims by any court of 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 judicia l review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub . L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BOEHNING_RICHARD_J_DA_4324_16_0126_I_1_FINAL_ORDER_1996203.pdf | 2023-01-25 | null | DA-4324 | NP |
3,715 | https://www.mspb.gov/decisions/nonprecedential/DOWELL_DEBBIE_AT_0432_20_0015_X_1_FINAL_ORDER_1996220.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBBIE DOWELL,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
AT-0432 -20-0015 -X-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debbie Dowell , Goodlettsville, Tennessee, pro se.
Jessica L. Kersey , 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 In a September 18, 2020 compliance initial decision, the administrative
judge found the agency in partial noncompliance with the Board’s April 23, 2020
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
final decision reversing the appellant’s removal and ordering the agency to
retroactively restore her with back pay and benefits. Dowell v. Department of
Interior, MSPB Docket No. AT -0432 -20-0015 -I-1, Initial Appeal File, Tab 25,
Initial Decision ; Dowell v. Department of Interior , MSPB Docket No. AT -0432 -
20-0015 -C-1, Compliance File, Tab 4, Compliance Initial Decision (CID). For
the reasons that follow, we now find the agency in compliance and DISMISS the
appellant’s petition for enforcement.
DISCUSSION O F ARGUMENTS AND EVID ENCE ON COMPLIANCE
¶2 In the compliance initial decision , administrative judge found the agency in
partial noncompliance with the Board’s final order to the extent it failed to grant
the appellant a within -grade -increase (WIGI) effective November 30, 2019, and
to include the WIGI in its back pay calculations. CID at 4. Accordingly, the
administrative judge granted the appellant’s petition for enforcement and ordered
the agency to provide her a WIGI as of November 30, 2019, and to recompu te her
back pay award to include the WIGI. CID at 8 . As neither party filed any
submission with the Clerk of the Board within the time limit set forth in 5 C.F.R.
§ 1201.114 , the admin istrative judge’s findings of noncompliance have become
final, and the appellant’s petition for enforcement has been referred to the Board
for a final decision on compliance. 5 C.F.R. § 1201.183 (b)-(c); Dowell v.
Department of Interior , MSPB Docket No. AT -0432 -20-0015 -X-1, Compl iance
Referral File (CRF), Tab 1.
¶3 In a September 2, 2021 submission, the agency informed the Board that it
had complied with the Board’s final order by granting the appellant a W IGI
effective November 30, 2019, and recomput ing her back pay award to include the
WIGI. CRF, Tab 3. As evidence of its compliance , the agency provided a
December 4, 2020 Standard Form 50 reflecting that the appellant received a WIGI
from step 5 to step 6, with an effective date of November 24, 2019 . Id. at 8. The
agency also provided pay audit worksheets reflecting that , as a result of the
3
WIGI, the appellant was entitled to an additional $95. 20 per pay period for 3 pay
periods ( November 24, 2019, through January 4, 2020 ) and an additional $98. 40
for 23 per pay period s (January 5 through December 5, 2020 ). Id. at 9-17.
Finally, the agency provided a leave and earnings statement for the pay period
ending December 5, 2020 reflecting that the appellant received a pay adjustment
of $2,582.51. Id. at 18. The agency explained that this adjustment included the
additional back pay owed to the appellant f or the retroactive WIGI plus interest.
Id. at 7. Although the appellant responded to the agency’s compliance
submission, she did not dispute the agency’s assertions of compliance.2 CRF,
Tab 4.
¶4 When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board ’s order
by a preponderance of the evidence.3 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R.
§ 1201.183 (d). An agency ’s assertions of complianc e must include a clear
explanation of its compliance actions supported by documentary evidence.
2 In respons e to the agency’s submission, the appellant requests a protective order or
that the Board allow her access to the documents filed by the agency so that she can
redact or delete the documents that contain her birthdate, address, and social security
number. CRF, Tab 4. The appellant’s request is denied . First, the Board does not
allow one party to alter or delete the submissions of another party. Second, with the
exception of t he Board’s decision in this matter, which is available on the Board’s
website, the case file from this appeal is protected by the Privacy Act of 1974 and is not
available to the public through e -Appeal Online or the Board’s website. While MSPB’s
adjudicat ion records may be requested under the Freedom of Information Act (FOIA),
all records are reviewed in accordance with the FOIA and may be withheld from release
if warranted by a FOIA exemption .
3 A preponderance of the evidence is the degree of relevant ev idence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4
Vaughan , 116 M.S.P.R. 319 , ¶ 5. The appellant may rebut the agency ’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
¶5 As noted above, the administrative judge found that, to be in compliance
with the Board’s final order, the agency must provide the appellant a WIGI
effective November 30, 2019, and recalculate her back pay award to account for
the WIGI. CID at 4. The agency’s submission s show that it has now reached full
compliance with this obligation. CRF, Tab 3. In particular, as set forth above,
the agency provided evidence reflecting that it granted the appellant a WIGI from
step 5 to step 6 with an effective date of November 24, 2019 , and recomputed her
back pay award to account for the retroactive WIGI . Id. In addition, the agency
provided evidence reflecting that it paid her an additional $2,582.51 in back pay
to account for the WIGI plus interest. Id. As the appellant has n ot responded to
the agency’s assertions and evidence of compliance, the Board assumes that she is
satisfied. See Baumgartner v. Department of Housing & Urban Development ,
111 M.S.P.R. 86 , ¶ 9 (2009).
¶6 In light of the foregoing, we find the agency in compliance with its
outstanding compliance obligation s and dismiss the petition for enforcement .
This is the final decision of t he Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropri ate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction.
If you wish to seek review of this final decision, you should immediately
review the law appl icable to your claims and carefully follow all filing time
limits and requirements. Failure to file within the applicable time limit may
result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receiv es this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Lo cator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request fo r review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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 com petent jurisdiction. The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
8
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DOWELL_DEBBIE_AT_0432_20_0015_X_1_FINAL_ORDER_1996220.pdf | 2023-01-25 | null | AT-0432 | NP |
3,716 | https://www.mspb.gov/decisions/nonprecedential/ORTIZ_SAUN_C_DE_0752_22_0062_I_1_FINAL_ORDER_1996276.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAUN C. ORTIZ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DE-0752 -22-0062 -I-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Saun C. Ortiz , Syracuse, Utah, pro se.
Jason D. Marsh , Esquire, Hill Air Force Base , Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt dissents without an opinion.
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which affirmed the appellant’s removal
from Federal service. For the reasons discussed below, we GRANT the petition
for review, DEN Y the cross petition for review, and AFFIRM 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
AS MODIFIED. We AFFIRM the following findings of the administrative judge:
(1) the agency proved one of two specifications of the disregard of directive
charge; (2) the agency failed to pro ve the unauthorized absence c harge; and
(3) the appellant failed to prove his affirmative defenses. We REVERSE the
administrative judge’s finding that the agency proved the lack of candor charge,
we VACATE the administrative judge’s penalty analysis, and we ORDER the
agency to substitute a 7 -day suspension in place of removal.
BACKGROUND
¶2 The appella nt worked for the agency as a WG -10 Composite/Plastic
Fabricator until his removal from Federal service on November 16, 2021. Initial
Appeal File (IAF), Tab 4 at 10. The events surrounding the appellant’s removal
are as follows. On April 28, 2021, the appellant reported to the agency that his
daughter was exhibiting symptoms of C OVID -19 and, on the next day, he
reported that his daughter had tested positive for COVID -19. IAF, Tab 19 at 38.
The agency’s occupational medicine department (OMS) instructed the appellant
to quarantine for 14 days and not to report to work. Id. On May 13, 2021,
the appellant reported to OMS that his wife tested positive for C OVID -19. Id.
OMS recommended that the appellant quarantine for an additional 14 days. Id.
The appellant reported to work on May 27, 2021. IAF, Tab 4 at 52 . The
appellant later submitted to the agency photos of two COVID -19 home testing
kits, appearing to have positive results, with his wife and daughter’s na mes
written on the test cards. Id. at 17 -22.
¶3 On June 10, 2021, the appellant’s supervisor received an email from the
appellant’s acco unt stating that the sender was the appellant’s friend , the
appellant was incoherent due to medi cations he was taking, and that he was
requesting leave without pay for the day . IAF, Tab 4 at 44 , Tab 19 at 21. The
actual email is not in the record. On th e same day, the appellant’s second -level
supervisor requested that the police perform a wellness check at the appellant’s
3
addres s of record. IAF, Tab 4 at 42 -45. The appellant was not at home but the
police spoke to the appellant’s wife. Id. After the wellness check, the appe llant’s
second -level supervisor called the appellant’s wife. Id. at 41. During the call,
the appellant’s wife stated that her daughter had an exposure to C OVID -19 at
school but that “[n]o other Covid incidents happened.” Id.; IAF , Tab 19 at 33.
¶4 The appellant was absent from work on various dates over the next 2 weeks.
To justify his absences, the appellant provided two medical notes from a
chiropractor. IAF, Tab 4 at 39 -40. The first was dated June 14, 2021 ,
and excused the appellant from work on June 8 th rough 10, June 14, and
June 21, 2021. Id. at 39. The second note was dated June 22 , 2021, and excused
the appellant from work on that da y. Id. at 40. The appellant’s supervisor was
suspicious of the authenticity of the n otes and called the medical office that
issued them . IAF, Tab 19 at 21 -22, 43 -45. According to memoranda written by
the appellant’s supervisor and another agency witness , an unidentified woman
answered the phone and claimed to have written the June 14 no te, but she stated
that she had not excused the appellant from work on June 21 and that he was not
seen in the office on that day . Id. at 22, 45. She also stated that she did not write
the June 22 note and that the appellant was not seen in the office on that day . Id.
One agency witness who listened to the phone call initially declared that the
woman who answered the phone was the appellant’s doctor, but he later asserted
that he did not know who answered the phone. Id. at 43; IAF, Tab 4 at 38.
¶5 On Oct ober 4, 2021, the agency proposed to remove the appellant based on
three charges : (1) lack of candor; (2) disregard of directive; and (3) unauthorized
absence. IAF, Tab 4 at 23 -25. The deciding official sustained all the charges and
specifications and r emoved the a ppellant from Federal service effective
November 16, 2021. Id. at 11 . The appellant filed a Board appeal and did not
request a hearing. IAF, Tab 1 at 1-2. The administrative judge issued an initial
decision based on the written record, whic h sustained the lack of candor and
disregard of directive charges, did not sustain the unauthorized absence charge,
4
denied the appellant’s affirmative defenses of disability discrimination under the
theories of disparate treatment and failure to accommodate, and upheld the
penalty of removal. IAF, Tab 22, Initial Decision (ID) at 12 -31. The appellant
has filed a petition for review and the agency has fil ed a cross petition for review.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF AR GUMENTS ON REVIEW
¶6 On review, the appellant reasserts the same arguments that he raised before
the administrative judge and argues that he did not engage in the conduct as
alleged. PFR File, Tab 1 at 3 -5. The agency asserts in its cross petition for
revie w that the administrative judge erred in not sustaining the unauthorized
absence charge. PFR File, Tab 3 at 12 -14.
¶7 As a threshold matter, we address the two undated and unsigned witness
statements that the appellant attached to his petition for review. P FR File, Tab 1
at 6-7. The Board generally will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -214 (1980). To
constitute new and material evidence, the information contained in t he
documents, not just the documents themselves, must have been unavailable
despite due diligence when the record closed. Grassell v. Department of
Transportation , 40 M.S.P.R. 554 , 564 (1989) ; 5 C.F.R. § 1201.115 (d). The
appellant has not shown that the information contained in the witness statements
was unavailable pr ior to the close of the record, and thus, we do not consider
them. We now address each of the three charges in turn.
The agency has not proved the lack of candor charge by preponderant evidence.
¶8 To prove a lack of candor charge, the agency must prove by p reponderant
evidence that the employee gave incorrect or in complete statements and that
he did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 ,
5
¶¶ 16-17 (2016). Preponderant evidence is the degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely to b e true th an untrue. 5 C.F.R.
§ 1201.4 (q). The agency charged the appellant with three specifications of lack
of candor, as set forth below . IAF, Tab 4 at 23.
¶9 The first specification charged th at the appellant lacked candor when he
told the agency that his wife and daughter tested positive for C OVID -19. Id. The
administrative judge found that the agency met its burden based on written
statements from three agency officials recounting a call with the appellant’s wife,
wherein she purportedly stated that her daughter had been exposed to COVID and
that there w ere no other “Covid incidents.” ID at 12 -13. We find that the agency
has not presented sufficient evidence to meet its burden for this charge . First, t he
statements from the appellant’s wife ar e recounted second hand by agency
officials. Although hearsa y evidence may constitute preponderant evidence, we
find that in this case, it does not. See Borninkhof v. Department of Justice ,
5 M.S.P.R. 77 , 87 (1981) (setting forth various factors that affect the weight to be
accorded to a hearsay statement, including, among others, the availability of the
person with firsthand knowledge to testify, whether the statement is sworn, the
agency’s explanation f or failing to obtain a sworn statement, and whether the
declarant was a disinterested witness). At the time the appellant’s wife made the
statement, she was angry with the situation . IAF, Tab 4 at 41 , Tab 18 at 16 -17.
The appellant has also asserted tha t his wife was upset that the agency, wh ich she
did not work for, asked her about her medical information. IAF, Tab 11 at 4.
The agency has not explained why it did not submit a sworn statement or
deposition testimony from the appellant’s wife affirming that she and her
daughter did not test positive for COVID -19. Second, t he administrative judge
considered that the appellant’s testimony surrounding his wife’s COVID -19 test
was inconsistent, and therefore she found that the photos of the COVID -19 testing
kits were unreliable with nothing in the reco rd to authenticate them. ID at 13.
6
However, t he appellant’s statements that the administrative judge deemed to be
inconsistent come from notes that the appellant’s supervisor took of calls between
the two and the supervisor’s transcription of voicemails from the appellant. IAF,
Tab 4 at 47 -52, Tab 19 at 20 ; ID at 9 -10. The supervisor’s notes do not identify
which entries are transcribed voicemails and which are notes of telephone calls .
IAF, Tab 4 at 47-52. Accordingly, we are unable to determine which entries, if
any, reflect the appellant’s exact words. Although we acknowledge that the
statements, as recounted by the agency, are not entirely consistent, we find that as
a whole, the agency has presented i nsufficient evidence to prove by preponderant
evidence that the appellant’s s tatements regarding his wife and daughter testing
positive for COVID -19 were untrut hful. We therefore do not sustain this
specification.
¶10 The second specification charges that t he appellant altered a medical note
releasing him from duty on June 8 -10 and June 14, 2021, to include an additional
date, June 21, 2021. Id. at 23. The appellant has admitted that he added the
June 21 date to the medical note and asserts that his doctor authorized him to do
so. IAF, Tab 20 at 5. The administrative judge sustained the charge based on
declarations from two agency witnesses attesting that , when they called the
medical office to verify the note, an uniden tified woman answered the phone and
she claimed to be the person who signed the June 14 medical note , stated that the
note did not include the June 21 date when she signed it , and confirmed that the
appellant was not seen in the office on June 21 or 22 . IAF, Tab 19 at 21 -22, 43,
45. We gi ve little weight to this hearsay evidence because the agency has not
identified who answered the phone or her position in the medical office.
See Borninkhof , 5 M.S.P.R. at 87. Further, the person who answered the phone
was incorrect when she stated that the appellant was not seen in the office on
June 22, 2021 . The appellant’s doctor provided a signed statement confirming
that the appellant was seen in the office on that day. IAF, Tab 8 at 4 . The agency
has not explained why it did not submit a sworn s tatement or deposition
7
testimony from the appellant’s doctor regarding the June 14 note .2 We find that
the appellant’s explanation that his doctor authorized him to add June 21 to the
medical note is plausible given his excused absences before and after June 21,
and we note that there is no contrary evidence in the record . The agency’s
submission of unreliable hearsay evidence is insufficient to meet its burden of
proof as to this specification.
¶11 The administrative judge did not sustain the third specif ication regarding
alleged fabrication of a June 22 doctor’s note. ID at 16 -17. The parties did not
challenge this finding on review and we find no error in it. Based on the
foregoing , the lack of candor charge is not sustained.
The agency proved the disregard of directive charge by preponderant evidence.
¶12 A charge of disregard of directive requires the agency to demonstrate that a
proper instruction was given and that the employee failed to follow it, without
regard to whether the failure was intentional or unintentional. See Hamilton v.
U.S. Postal Service , 71 M.S.P.R. 547 , 555 -56 (1996). The agency charge d that,
on June 8 and 10 , 2021, the appellant failed to properly request leave in
accordance with the procedures set forth in a March 1, 2021 memorandum.
IAF, Tab 4 at 23. The agency does not explain how the appellant failed to follow
the leave requesting procedures on June 8, 2021.3 The administrative judge
addressed only June 10 in the initial decision , and she sustained the specification .
ID at 17 -18. On this date, the appellant’s supervisor asserts that he received an
email from the appellant’s account stating that the se nder was the appellant’s
2 The administrative judge issued a subpoena to the appellant’s doctor for “ [c]opies of
any and all ‘Authorizations for Absence’ records you, or anyone on your behalf, created
in June 2021 for [the appellant]. ” IAF, Tab 10. The agency did not file any responsive
documents before the administrative judge.
3 The agency’s close of record submission states that the appellant failed to report to
work on June 8, 2021 . IAF, Tab 19 at 11. H owever, it does not state whether or not the
appellant requested leave on that day , and if he did, whether that request met the
requirements of the March 1 memorandum.
8
friend, that the appellant was incapacitated due to medication he was taking, and
that he was requesting leave without pay for the day. IAF, Tab 4 at 44, Tab 19
at 21. The email is not in the record but appears to be quoted in an unsigned and
undated police report that was prepared after th e June 10 wellness check.
IAF, Tab 4 at 44 -45. Assuming that the police report accurately quotes the email,
we find that it s content complies with the requirements set forth in the March 1
mem orandum in most respects except that it does not identify a call back number .
Id. at 44, 68. However , the March 1 memorandum prohibits emailed leave
requests and requires that the ap pellant, or a third party on the appellant’s behalf,
call the appellant’ s supervisor wi thin the first 2 hours of his shift if he is
requesting leave for the day . Id. at 68. There is no evidence that the appellant, or
anyone on his behalf, called his supervisor on June 10 to request leave.
Accordingly, the agency has proved this specification.
¶13 The administrative judge did not sustain the second specification charging
that the appellant abused drugs. ID at 18 -19. The parties do not address this
specification on review and we find no erro r in the administrative judge’s finding.
Whe n 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. Burroughs v. Department of the A rmy, 918 F.2d 170 , 172 (Fed. Cir.
1990). Accordingly, we sustain the charge of disregard of directive.
The agency has not proved the unauthorize d absence charge.
¶14 The agency charged that the appellant’s leave from April 28 through
May 26, 2021, was unauthorized because the agency would not have approved the
absence had it been aware of the appellant’s untruthfulness about his family’s
health. IAF, Tab 4 at 23. The administrative judge did not sustain the charge
because she found that the leave was authorized by the agency . ID at 20. We
agree. In order to prove its charge, the agency must prove that the appellant gave
untruthful information , as charged in the specification. As stated in paragraph 9
above, the agency has failed to do so.
9
We affirm the administrative judge’s denial of the appellant’ s disability
discrimination affirmative defense .
¶15 The parties do not challenge the administrative j udge’s findings as to the
denial of the appellant’s disability discrimination claims, and we find no material
error in them. ID at 21 -27.4 We therefore affirm the administrative judge’s
findings on this point.
The penalty of removal exceeds the bounds of reasonableness.
¶16 The parties do not challenge the administrative judge’s finding that a nexus
exists between the appellant’s misconduct and the efficiency of the service, and
we discern no error in it. ID at 28. When the Board sustains fewer than all of the
agency’s charges, the Board may mitigate to the maximum reasonable penalty as
long as the agency has not indicated either in its final decision or in the
proceedings before the Board that it desires that a lesser penalty be imposed for
fewer charges . Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999). There
is no such evidence in the record. The Board has identified several factors as
relevant in determining the appropriateness of a penalty. See Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1981). The most important of these
factors is the nature and seriousness of the offense. Boo v. Department of
Homeland Security , 122 M.S.P.R. 100 , ¶ 18 (2014). Among the considerations
included in this factor are the relationship of the offense to the employee’s duties,
position, and responsibilities, i ncluding whether the offense was intentional or
was frequently repeated. Id. The appellant worked for the agency for 6 years and
does not appear to have had any performance problems during that time.
IAF, Tab 4 at 10. The appellant did not hold a super visory position. Id. The
appellant was previously reprimanded and served a 3 -day suspension for failure
4 Since the issuance of the initial decision, the Board issued Pridgen v. Office of
Management & Budget , 2022 MS PB 31 , which, among other things, addressed the
causation standard for proving discrimination on the basis of disability. 2022 MSPB
31, ¶¶ 39 -40, 42. Given the finding the appellant’s disability was not a motivating
factor in the agency’s action, Pridgen does not affect the outcome of this matter.
10
to follow the agency’s leave procedures. IAF, Tab 4 at 61, 64, 69-70. We have
considered that on the date in question, the appellant made contact wi th the
agency to inform his supervisor that he would be absent, albeit not in the way in
which he was instructed. We have also considered the assertion that the appellant
was inc oherent due to his disability . Id. at 44 . The appellant has also stated tha t
he and his wife were having relationship troubles and he was experiencing pain
based on his disability. IAF, Tab 18 at 16 -17, Tab 20 at 4 -5. The agency’s table
of penalties recommends a 5 -day suspension to removal for a third offense of
failure to requ est leave according to established procedures. IAF, Tab 4 at 104.
Given these factors , we find that the penalty of removal exceeds the bounds of
reasonableness and that a 7 -day suspension is the maximum reasonable penalty.
ORDER
¶17 We ORDER the agency to cancel the removal and substitute a 7 -day
suspension. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed.
Cir. 1984). The agency must complete this action no later than 20 days after the
date of this decision.
¶18 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Manag ement’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 in formation 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 af ter 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
11
taken to carry out the Board’s Order. The appellant, if not notifi ed, 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, t he 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 appe llant 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).
¶21 For a gencies 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 adjust ments 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 m eet 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, an d 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.
12
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 appropri ate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appli cable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have up dated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
14
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
15
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblowe r claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1 510.
16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 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 e arning 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provid e same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Ope rations at 504 -255-4630. | ORTIZ_SAUN_C_DE_0752_22_0062_I_1_FINAL_ORDER_1996276.pdf | 2023-01-25 | null | DE-0752 | NP |
3,717 | https://www.mspb.gov/decisions/nonprecedential/JONES_JULIA_HAMILTON_AT_0752_20_0570_I_2_REMAND_ORDER_1996296.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JULIA HAMILTON JONES ,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0752 -20-0570 -I-2
DATE: January 25. 2023
THIS ORDER IS NONPRECEDENTIAL1
Julia Hamilton Jones , Spartanburg, South Carolina, pro se.
Gretchen M. McMullen , 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
sustained her removal for medical inability to perform and excessive absenteeism .
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 Atlant a Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 At all times relevant to this appeal, beginning on October 6, 2016, the
appellant served as a GS -7 Food Inspector - Slaughter. Jones v. Department of
Agricultur e, MSPB Docket No. AT -0752 -20-0570 -I-1, Initial Appeal File (IAF),
Tab 3 at 17 -20, 77 . Shortly thereafter, the appellant elected to file an Office of
Workers’ Compensation Programs claim pursuant to which she was awarded wage
replacement and health care benefits , and thus she was consistently absent from
work beginning in March 2017 . IAF, Tab 7 at 40 -44, Tab 17 at 29 . On October
24, 2018, the appellant’s doctor submitted a Department of Labor Work Capacity
Evaluation, certifying that she was permanently disabled due to her cervical spine
condition , and stating that she was unable to work any hours at all in her current
job or in any other job. IAF, Tab 24 at 152. Therefore, on October 7, 2019, the
Acting Branch C hief, L abor and Employee Relations Division, issued a letter of
decision removing the appellant based on two charges of medical inability to
perform and excessive absenteeism , effective the date of receipt . IAF, Tab 3 at
17-20.
¶3 The appellant amended an existing equal employment opportunity (EEO )
complaint alleging that her removal was due to disability discrimination (failure
to reasonably accommodate) and in retaliation for prior EEO activity beginning in
2016. IAF, Tab 30 at 85 -87. After the agency issued a final agency decision
finding no s upport for either of her claims, the appellant time ly filed her Board
appeal. IAF, Tab 23 at 17 -34; IAF, Tab 1 . The administrative judge issued an
initial decision affirming the appellant’s removal, sustaining the agency’s charges
and rejecting the appel lant’s affirmative defenses, including her defenses of
disability discrimination and retaliation based on prior EEO activ ity and filing a
3
previous Board appeal in 2016.2 Jones v. Department of Agriculture , MSPB
Docket No. AT -0752 -20-0570 -I-2, Appeal File, Tab 16, Initial Decision ( I-2 ID )
at 7-12.
¶4 The appellant has filed a petition for review , challenging, in part, the
administrative judge’s finding that she was not subject ed to unlawful retaliation .3
Petition for Review (PFR) File, Tab 1 at 13-14. The agency has responded in
opposition to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 We agree with the administrative judge’s findings sustaining the agency’s
charges, especially in light of the fact that the appel lant’s medical provider
certified that she was permanently disabled and unable to work any job as of
October 24, 2018, and she had been continuously absent from duty for
2 The administrative judge also rejected the appellant ’s claim that the agency retaliated
against her for filing a disability retirement application with the Office of Personnel
Management. Jones v. Department of Agriculture , MSPB Docket No. AT-0752 -20-
0570 -I-2, Appeal File , Tab 16 , Initial Decision at 12. To the extent that the appellant
disputes this finding on review, she has cited to no legal authority that stands for the
proposition that filing a disability r etirement application constitutes protected activity
under EEO statutes , and we are unaware of any such authority.
3 With her petition for review , the appellant has submitted a brief statement from a
physician dated August 10, 2021, indicating that she is clear to work but cannot lift
over 10 pounds. Petition for Review File, Tab 1 at 34. To the extent the appellant
suggests that this statement establishes that she is recovered and thus the agency action
must fail, the Board has held that when an appel lant recovers from the medical
condition that resulted in h er removal before the administrative judge has issued an
initial decision in h er removal appeal, the removal action does not promote the
efficiency of the service. See Morgan v U.S. Postal Service , 48 M.S.P.R. 607 , 613
(1991) (“Thus, when it is apparent that the appellant’s inability to perform is temporary
in nature and, in fact, that the appellant has recovered even before the Board can render
an initial decision in an appeal, the Board correctly and properly refuses to hold that the
agency’s removal action is for the efficiency of the service.”) . Here, the agency
removed the ap pellant in 2019 and the administrative judge issued the initial decision in
July 2021. Thus, the appellant’s new medical evidence is from after the initial decision
and is not material. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(finding that the Board generally will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
4
approximately 2½ years . I-2 ID at 7 -9. Nevertheless, we must remand this matter
to the regional office for further adjudication because the appellant was not
provided with proper notice regarding her claim of whistleblower reprisal.
¶6 The appellant asserted that the agency removed her in retaliation for filing a
Board appeal in 2016 challenging her probationary termination.4 PFR File, Tab 1
at 13 -14; IAF, Tab 1 at 6; I -2 ID at 12 . In the initial decision, the administrative
judge rejecte d the appellant’s retaliation claims because she failed to present
evidence that any agency official acted with actual animus or that any other
employee with similar medical absences, but with no prior complaints, was
treated differently or more favorably, and the agency’s evidence powerfully
rebutted her argument that her removal was illegitimate and retaliatory . I-2 ID
at 12. However, in her prior Board appeal, Jones v. Department of Agriculture ,
MSPB Docket No. DE -0752 -16-0475 -I-1, IAF, Tab 12 at 54, the appellant alleged
whistleblower reprisal . Accordingly, a basis of the appellant’s retaliation claim
here, i.e. , the 2016 Board appeal, is ostensibly covered by 5 U.S.C.
§ 2302 (b)(9)(A)(i), whic h refers to retaliation for the exercise of any appeal,
complaint, or grievance right with regard to remedying a claim of whi stleblower
reprisal. Thus, this affirmative defense should have been analyzed under the
whistleblower protection framework set for th in 5 U.S.C. § 1221 (e). Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶ 12 (2015).
¶7 Under some circumstances , the Board might be able to adjudicate a
whistleblower claim such as this without remand. Here, however, because the
administrative judge never inform ed the appellant of her burden and elements of
4 The appellant previously worked as GS -5 Food Inspector in a different plant. She was
terminated from that position for misconduct, ostensibly during probation, effective
September 15, 2016. It was d etermined during adjudication of the appellant’s appeal
that she had, in fact, completed her probationary period, prompting the parties to settle
the appeal which was dismissed on that basis. Jones v. Department of Agriculture ,
MSPB Docket No. DE-0752 -16-0475 -I-1 (Initial Decision, Dec. 9, 2016). As a result,
the appellant was reassigned to the position in which she served at the time of the
action under review.
5
proof for establishing a claim of whistleblower reprisal , we must remand the
appeal so that the appellant might receive such notice. Guzman v. Department of
Veterans Affairs , 114 M.S.P.R. 566 , ¶ 18 (2010); see Burgess v. Merit Systems
Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir . 1985) (explaining that the
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue).
¶8 Additionally, at the time the initial decision was issued, the administrative
judge did not have the benefit of the Board’s decision in Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 44-46, which holds that requesting a
reasonable accommodation and complaining of disability discrimination are
activities protected by the American with Disabilities Act Amendment Act
(ADAAA ),5 not Title VII, and thus, the more stringent “but -for” standard applies .
Accordi ngly, on remand the administrative judge should apply Pridgen and
determine whether the app ellant established that her prior EEO activity , i.e. , her
complaints of disability discrimination and requests for reasonable
accommodation, was the “but -for” cause of her removal.6 The administrative
judge should then issue a new initial decision that identifies all material issues of
fact and law, summarize s the evidence, resolve s issues of credibility, and include s
his conclusions of law and his legal reasoning, a s well as the authorities on which
that reasoning rests . Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980).
5 The Board adjudicates claims of disability discrimination raised in connection w ith an
otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act. Pridgen , 2022 MSPB 3 1, ¶ 35. The standards under the Americans
with Disabilities Act, as amended by the ADAAA, have been incorporated by reference
into the Rehabilitation Act and the Board applies them to determine whether there has
been a Rehabilitation Act violation. Id.; see 29 U.S.C. § 791(f).
6 Regarding the appellant’s failure to reasonably accommodate claim , the administrative
judge should also consider whether the appellant is a qualified individual with a
disability under the ADAAA , and whether the agency was obligated to reasonably
accommodate her . 42 U.S.C. § 12111 (8); 42 U.S.C. § 12112 (b)(5) ; Haas v. Department
of Homeland Security , 2022 MSPB 36 , ¶ 29.
6
ORDER
¶9 For the reasons discussed above, we remand this case to the Atlanta
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 | JONES_JULIA_HAMILTON_AT_0752_20_0570_I_2_REMAND_ORDER_1996296.pdf | 2016-10-06 | null | AT-0752 | NP |
3,718 | https://www.mspb.gov/decisions/nonprecedential/GILLIAM_JAMEL_G_SF_0752_16_0705_I_1_FINAL_ORDER_1996408.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMEL G. GILLIAM,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -16-0705 -I-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis L. Friedman , Esquire, Philadelphia, Pennsylvania, for the appellant.
Reza Behinia , 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 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
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
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 appellant was a GS -13 Health System Specialist working at the
agency’s San Diego, California facility. Initial Appeal File (IAF), Tab 9. On
February 27, 2015, the appellant’s supervisors rated the appellant’s performance
as “Unacceptable.” Id. On March 17, 2015, the agency placed the appellant on a
performance improvement plan (PIP) based on his “Unacceptable” rating in one
of his critical elements. IAF, Tab 3. Instead of the appellant completing the PIP,
however, the agency granted his request for a temporary detail. Id. at 14-15. He
returned to his former job —still remaining on the PIP —sometime in August 2015.
Id.
¶3 The appellant resigned from his GS -13 position on September 11, 2015. Id.
at 28. He stated that he resigned from his job “because it was evident” that his
supervisor’s “intention was to terminate [his] employment.” Id. at 6. After he
resigned, the appe llant filed a formal equal employment opportunity (EEO)
complaint alleging discrimination on the bases of race and sex. Id. at 18. The
appellant timely filed this Board appeal alleging that his resignation was
3
involuntary after the agency issued a final agency decision on his EEO complaint.
IAF, Tab 1. The appellant requested a hearing. Id.
¶4 The administrative judge issued an acknowledgment order in which he
informed the appellant that the Board might not have jurisdiction over his appeal,
apprised hi m of his jurisdictional burden, and ordered him to file evidence and
argument on the jurisdictional issue. IAF, Tab 2 at 2-3. The appellant responded
to the jurisdictional order. IAF, Tabs 3-7. The administrative judge reviewed the
appellant’s submissi ons and found that he failed to make a nonfrivolous
allegation that his placement on a PIP and his alleged poor treatment by his
supervisor forced him to resign. Without holding the requested hearing, the
administrative judge issued an initial decision th at dismissed the appeal for lack
of jurisdiction. IAF, Tab 11, Initial Decision (ID).
¶5 The appellant has filed a document that he titles “Appellant’s Protective
Petition for Review.” Petition for Review (PFR) File, Tab 1. He notes that he
“contacted th e agency and asked that his discrimination complaint be processed
under the non -mixed case procedures of” the Equal Employment Opportunity
Commission (EEOC). Id. He adds that he filed this protective petition for review
as a “precautionary measure” becau se the agency has not yet responded to his
request to have his case processed through the EEOC. Id. He also filed a
supplement to his petition for review, which contains copies of letters he sent to
the agency concerning his request to process his case t hrough the EEOC and a
copy of the final agency decision on his discrimination complaint. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 We turn first to the appellant’s request that his case be processed under the
purview of EEOC’s Federal sector EEO regulations, instead of continuing w ith
his appeal through the Board on review. 29 C.F.R. part 1614. The EEOC may or
may not decide to adjudicate the appellant’s request for further proc essing of his
4
discrimination complaint. See Complainant v. Lynch , E EOC Appeal
No. 0120132506, 2015 WL 4760937 (July 28, 2015) (finding that, if the Board
does not have jurisdiction over part of a discrimination complaint, the agency
should process that part under non -mixed case procedures). However, to the
extent that th e appellant may be asking the Board to order the agency or the
EEOC to process his discrimination complaint, the Board lacks the authority to do
so.
¶7 We now turn to our review of the administrative judge’s initial decision.
As the administrative judge corr ectly found, the Board does not have jurisdiction
over all agency actions that are alleged to be incorrect. ID at 5. Instead, the
Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation . Mad dox v. Merit Systems Protection
Board , 759 F.2d 9 , 10 (Fed. Cir. 1985).
¶8 The appellant has not asserted error in the initial decision. Instead, h is
petition for review appears to constitute mere disagreement with the
administrative judge’s findings. See Mulroy v. Office of Personnel Management ,
92 M.S.P.R. 404 , ¶ 15 (2002) (finding that a petition for review does not meet the
criteria for review when it does not raise specific arguments of error and merely
incorporates arguments submitted below), overruled on other g rounds by Clark v.
Office of Personnel Management , 120 M.S.P.R. 440 (2013); see Alexander v.
Department of Commerce , 30 M.S.P.R. 243, 248-49 (1986) (finding that, when
the appellant’s petition for review merely repeated the explana tion he gave to the
agency’s deci ding of ficial, the petition did not meet the cri teria for review
because it did not set forth specific objections to the initial decision) , overruled
on other grounds by Jackson v. Department of Veterans Affairs , 97 M.S.P.R. 13
(2004) .
¶9 We find no basis to disturb the administrative judge’s well -reasoned
findings regarding the appellant’s allegations of involuntariness concerning his
decision to resign. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997)
5
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); see also Loggins v. U.S. Postal Service , 112 M.S.P.R. 471 ,
¶ 12 (2009); Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000)
(finding that an employee is not guaranteed a working environment free of stress
and that g enerally, dissatisfaction with work assignments, a feeling of being
unfairly c riticized, or difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign).
¶10 Accordingly, we affirm the administrative judge’s dismissal of this
construc tive removal appeal for lack of jurisdiction.
NOTIC E OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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.
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 d iscrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
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.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
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.
9
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | GILLIAM_JAMEL_G_SF_0752_16_0705_I_1_FINAL_ORDER_1996408.pdf | 2023-01-25 | null | SF-0752 | NP |
3,719 | https://www.mspb.gov/decisions/nonprecedential/COPELAND_BRYAN_W_DC_0752_17_0237_I_1_FINAL_ORDER_1996446.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRYAN W. COPELAND,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -17-0237 -I-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant.
Dena M. Panecaldo , Esquire, and Mary Kate DeMane , Portsmouth,
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
dismissed his removal appeal for lack of jurisdiction pursuant to an appeal rights
waiver contained in a last chance agreement (LCA) . On petition for review, the
appellant argues that the administrative judge erred in finding that the 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
rights waiver was valid and enforceable because he proved that he lacked the
required mental capacity to enter into the LCA and because the agency coerced
him to sign . He also argues again that the agency’s failure to include the
language required under the Older Workers Benefit Protection Act of 1990 in the
LCA invalidates the entire agreement . Generally, we grant petitions such as this
one only in the following circumstances: the initial d ecision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either t he course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, des pite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully consideri ng the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 followi ng summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding whi ch cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicabl e time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particul ar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
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 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 da ys 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 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
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 courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COPELAND_BRYAN_W_DC_0752_17_0237_I_1_FINAL_ORDER_1996446.pdf | 2023-01-25 | null | DC-0752 | NP |
3,720 | https://www.mspb.gov/decisions/nonprecedential/GRANT_KINTE_ALLAH_AT_0731_17_0661_I_1_REMAND_ORDER_1996459.pdf | ERROR: HTTPSConnectionPool(host='www.mspb.gov', port=443): Read timed out. (read timeout=30) | GRANT_KINTE_ALLAH_AT_0731_17_0661_I_1_REMAND_ORDER_1996459.pdf | Date not found | null | null | NP |
3,721 | https://www.mspb.gov/decisions/nonprecedential/KANE_JAMES_L_SF_0752_16_0194_I_1_FINAL_ORDER_1996484.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES L. KANE,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0194 -I-1
DATE: January 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elbridge W. Smith , Esquire, Honolulu, Hawaii, for the appellant.
Paul T. Tsukiyama , Joint Base Pearl Harbor Hickam, 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
affirmed the agency’s removal action . On petition for review, the appellant
argues the agency’s charge should not be sustained ; the agency failed to properly
evaluate the penalty , and its chosen penalty is unduly harsh; and the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
committed harmful procedural error . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initia l decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consist ent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
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 re view of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines th e time limit for seeking such
review and the appropria te forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Meri t
Systems Protec tion Board does not 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 r eview 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 op tion 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 c hosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should c ontact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circui t is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intereste d in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellan ts before the 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 op tion applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —includ ing a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file w ith the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opport unity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 j urisdiction expired on
December 27, 2017. The All Circuit Review Ac t, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction.
The All Circuit Review Act i s 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 t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | KANE_JAMES_L_SF_0752_16_0194_I_1_FINAL_ORDER_1996484.pdf | 2023-01-25 | null | SF-0752 | NP |
3,722 | https://www.mspb.gov/decisions/nonprecedential/MCDUFFIE_JOHN_SF_0752_17_0059_I_1_FINAL_ORDER_1995800.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN MCDUFFIE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -17-0059 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Henry E. Leinen , Pacific Grove, California, for the appellant.
Adriana N. Aristeiguieta , 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
sustained his demotion . On petition for review, the appellant disputes the
reasonableness of the penalty, argu ing the agency failed to properly weigh
various mitigating factors i n reaching its decision . 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 erroneous
interpretation of statute or reg ulation 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 esta blished 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 RI GHTS2
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 appropria te forum with w hich to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appr opriate 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 a pplicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which op tion is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in ge neral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuan ce of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
followi ng address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of p articular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Cou rt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the serv ices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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 thi s decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment o f fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decisi on.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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 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
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 | MCDUFFIE_JOHN_SF_0752_17_0059_I_1_FINAL_ORDER_1995800.pdf | 2023-01-24 | null | SF-0752 | NP |
3,723 | https://www.mspb.gov/decisions/nonprecedential/REEDER_STEPHANIE_S_DE_0752_20_0346_I_1_FINAL_ORDER_1995813.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEPHANIE S. REEDER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
DE-0752 -20-0346 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Ann L. Maley , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt dissents without an opinion.
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s reduction in grade and pay. 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
erroneo us 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 du e 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 a ppeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the agency argues that the administrative judge did not apply the
correct legal standard in finding that the appellant did not violate 5 C.F.R.
§ 2635.101 (b)(14), as alleged in specifications 1 and 2 of the conduct unbecoming
charge.2 Section 2625.101(b)(14) provides that employees “shall endeavor to
avoid any actions cr eating the appearance that they are violating . . . ethical
standards.” The substantive ethical standard at issue here is in turn found at
5 C.F.R. § 2625.101 (b)(8), which provides that employees “shall act impartially
and not give preferential treatment to any private organization or individual.” As
the agency notes, section 2635.101(b)(14) further provides that “[w]hether
particular circumstances create an appearance that ethical stan dards have been
violated shall be determined from the perspective of a reasonable person with
2 We discern no error in the administrative judge’s construal of these specifications .
See Boltz v. Social Security Administration , 111 M.S.P.R. 568 , ¶ 16 (2009) (in resolving
how a charge should be construed and what elements require proof, the Board examines
the st ructure and language of the proposa l notice and decision letter). We find that it
was unnecessary for the administrative judge to also determine whether the appellant
complied with the separate requirements of 5 C.F.R. § 2635.502 , and we do not address
the agency’s challenge to the administrative judge’s findings on that issue.
3
knowledge of the relevant facts.” The Board has also explained that fundamental
fairness precludes disciplining an employee for creating the appearance of an
ethical violation unless she should have known it would appear improper to a
reasonable observer under the circumstances. Ryan v. Department of Homeland
Security , 123 M.S.P.R. 202 , ¶ 13 (2016). Hence, as t he agency states, it is
appropriate to apply a “reasonable person” standard in determining whether the
appellant violated section 2635.101(b)(14) by creating the appearance that she
was not impartial when she hired R .N.
¶3 The agency contends that a reasonable person with knowledge of the
relevant facts would find that the appellant’s involvement in the hiring of her
son’s girlfriend created the appearance of lack of impartiality. In su pport of its
assertion, the agency lists a number of facts that were available to the appellant .
Petition for Review File, Tab 1 at 9. However, that list conspicuously omits the
crucial fact that the appellant’s first-level supervisor , R.C., had specifically
advised her that her participation in the hiring process for R .N. did not raise any
ethical concerns. Considering that the appellant had been so advised, we are not
persuaded that she knew or should have known that hiring R .N. for either position
would appear im proper to a reasonable observer. Hence, we find that
fundamental fairness precludes disciplining the appellant for creating the
appearance of an ethical violation.
¶4 The agency also contends that the administrative judge erred i n crediting
the appellant’s testimony that she had timely provided R.C. adequate information
concerning her son’s current romantic relationship with R .N. and her own
friendship with R.N.’s mother . However, we find the agency has not identified
sufficientl y sound reasons for overturning the administrative judge’ s credibility
determination, which was implicitly based on his observations of witness
demeanor. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 ,
1372 -73 (Fed. Cir. 2016); Haebe v. Department of Justice , 288 F.3d 1288 , 1301
(Fed. Cir. 2002).
4
¶5 The agency also argues that the administrative judge should have granted its
request to call a rebuttal witness , M.P., who, according to the agency, would have
testified that the appellant had told M .P. that, during the appellant ’s previous
conversa tion with R .C., the appellant had indicated to R .C. that R.N. was a
“friend .” Hearing Transcript at 143 (Dec. 16, 2020). We discern no abuse of
discretion in the administrative judge’s dec ision to deny the agency’s request ,
considerin g that the proffered hearsay testimony was already available in the
written record , Initial Appeal File, Tab 11 at 27 -34, the agency had failed to
request M .P. as a witness before the hearing, and the appellant had testified
consistently to her own recollection of the conversation. See Franco v. U.S.
Postal Service , 27 M.S.P.R . 322 , 325 (1985) (holding that an administrative judge
has wide discretion under the Board’s regulations to exclude witnesses when it
has not been shown that their testimony would be relevant, material, and
nonrepetitious); see also 5 C.F.R. § 1201.41 (b)(8), (10).
¶6 To the extent the agency otherwise disagrees with the administrative
judge’s weighing of the evidence , the agency’s mere disagreement with his
findings provides no basis for f urther review. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the administrative
judg e’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357 , 359 (1987 ) (same). Accordingly, we deny
the agency’s petition.
ORDER
¶7 We ORDER the agency to cancel the appellant ’s reduction in grade and pay
and to restore the appellant effective July 5, 2020. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
5
¶8 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 ther e 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.
¶9 We further ORDER the agency to tell the appel lant 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).
¶10 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued t he initial decision on this appeal if the 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, an d should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶11 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
6
NOTICE TO THE AP PELLANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of thi s final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and caref ully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide wh ich one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. 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 representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of ap peals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information 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
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 that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must 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. | REEDER_STEPHANIE_S_DE_0752_20_0346_I_1_FINAL_ORDER_1995813.pdf | 2023-01-24 | null | DE-0752 | NP |
3,724 | https://www.mspb.gov/decisions/nonprecedential/LEWIS_JOHNSON_ROSALAND_PH_315H_16_0437_I_1_FINAL_ORDER_1995876.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSALAND LEWIS -JOHNSON,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
PH-315H -16-0437 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosaland Lewis -Johnson , Auburn Hills, Michigan, pro se.
David Gallagher and John A. Greenlee , Esquire, Fort Belvoir, Virginia, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Le avitt, 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 decisio n contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
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 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
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 filed a Board appeal alleging that her resignation was
involuntary and that she was forced to resign in lieu of removal. Initial Appeal
File (IAF), Tab 1. She asserted that she received no warning or corrective action
prior to her proposed removal and that the agency provided her only 24 hours to
decide whether to resign or be removed . Id. at 5 . Because it appeared that t he
Board ma y not have jurisdiction over her appeal, the administrative judge ordered
the appellant to submit evidence and argument establishing a nonfrivolous
allegation of jurisdiction. IAF, Tab 2. The appellant responded that the Board
has jurisdiction over her appeal because she was not required to serve a
probationary period . IAF, Tab 3. The agency thereafter filed a motion to dismiss
the appeal for lack of jurisdiction , arguing that the appell ant was a probationary
employee and, alternatively, that the appeal should be dismissed as untimely
filed. IAF, Tab 13. The administrative judge subsequently issued an order
instructing the parties to address the issue of whether the a ppellant had standing
to appeal and, if so, whether the appellant’s resigna tion was involuntary. IAF,
3
Tab 14. The parties also were instructed to address the timeliness of the appeal.
Id.
¶3 In response, t he agency re asserted that the appeal should be dismissed for
lack of jurisdiction because the appellant lacked standing to a ppeal to the Board .
IAF, Tab 15 at 7-8. The appellant responded , again arguing that she is not a
probationary employee and that she was forced to resign in lieu of removal . IAF,
Tabs 16-17.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial
Decision (ID). He found that under Fitzgerald v. Department of the Air Force ,
108 M.S.P.R. 620, ¶¶ 8-10 (2008), the appellant’s prior service with a different
agency could be tacked onto her current competitive service to sa tisfy the 1 year
of current continuous service required to meet the definition of “employee” in
5 U.S.C. § 7511 (a)(1)(A). ID at 3 -5. Thus, he found that the appellant was not a
probationary emplo yee and that she had standing to appeal an adverse action to
the Board. ID at 5. Nevertheless, the administrative judge found that the
appellant failed to make a nonfrivolous allegation of jurisdiction over her
involuntary resignation claim . ID at 5 -7. Specifically, the administrative judge
found that the appellant failed to nonfrivolous ly allege that the agency coerced
her into resigning , that she resigned after being given misinformation , or that her
resignation was otherwise involuntary . ID at 10. In light of this disposition, the
administrative judge did not address the timeliness issue. ID at 8-10 n.3.
¶5 The appellant has filed a timely petition for review in which she challenges
the administrative judge’s findings regarding voluntariness . Petition for Review
(PFR) File, Tab 1. The agency has filed a response , and the appellant has replied
to that response. PFR File, Tabs 7 -8.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation that her resignation
was involuntary.
¶6 The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. Axsom v. Department of Veterans Affairs ,
110 M.S.P.R. 605, ¶ 9 (2009). The Board’s jurisdiction is limited to those
matters over which it has been given jurisdiction by law, rule, or regulation. Id.
Section 7513(d) of title 5 grants the Board jurisdiction to hear ap peals of certain
enumerated adverse actions, including the agency’s removal of an employee. Id.
An employee’s voluntary action, such as a resignation, generally is not appealable
to the Board. Id. However, an involuntary resignation is equivalent to a forced
removal and is a matter within the Board’s jurisdiction. Id. In a case involving
such an alleged constructive removal, once the appellant presents nonfrivolous
allegations of Board jurisdiction —allegations of fact that if proven would
establish th e Board’s jurisdiction —the appellant is entitled to a hearing at which
she must prove jurisdiction by a preponderance of the evidence. Id.
¶7 Resignations are presumed to be voluntary, and the appellant bears the
burden of proving otherwise. Id., ¶ 12. To overcome the presumption that a
resignation was voluntary, the employee must show that the resignation was the
result of the agency’s misinformation or deception, or that the resignation was
coerced by the agency. Id. To establish involuntariness on th e basis of coercion,
an employee must show that the agency effectively imposed the terms of the
employee’s resignation, the employee had no realistic alternative but to resign,
and the employee’s resignation was the result of improper acts by the agency. Id.
The touchstone of the “voluntariness” analysis is whether, considering the totality
of the circumstances , factors operated on the employee’s decision -making process
that deprived her of freedom of choice. Id. If an employee claims that her
resignati on was coerced by the agency creating intolerable working conditions,
she must show a reasonable employee in her position would have found the
5
working conditions so difficult or unpleasant that they would have felt compelled
to resign. Id. The Board addresses allegations of discrimination and reprisal in
connection with an alleged involuntary resignation only insofar as those
allegations relate to the issue of voluntariness. Id. For the reasons discussed
below, we agree with the administrative judge that the appellant failed to make a
nonfrivolous allegation that her resignati on was involuntary .
¶8 Here, the appellant reiterates on review her version of the eve nts leading up
to her resignation and reasserts the claims she raised below, i.e., that the ag ency
proposed her removal, that she was coerced to resign because she was placed on
administrative leave after the agency proposed her removal, and that the agency
did not provide her enough time to decide whether to resign in lieu of being
removed. PFR F ile, Tabs 1, 8.
¶9 However, as the administrative judge correctly found, t he fact that an
employee is faced with the unpleasant choice of either resigning or opposing a
potential removal action does not rebut the presumed voluntariness of her
ultimate choice of resignation unless the employee can show that the agency
knew or should have known that the reason for the threatened removal could not
be substantiated. See S chultz v. U.S. Navy , 810 F.2d 1133 , 1136 -37 (Fed. Cir.
1987). Here, although the appellant clearly contests the merits of the proposed
removal, we agree with the administrative judge’s finding that the appellant has
made no factual alle gations that would even suggest that the agency was aware
that it could not prove its charges. ID at 8; see Schultz , 810 F.2d at 1136 -37.
Accordingly, we agree with the administrative judge’s conclusion that the
appellant failed to nonfrivolously allege coercion. Axsom , 110 M.S.P.R. 605,
¶ 17 (finding that a resignation is not involuntary if the employee had a choice of
whether to resign or contest the validity of the agency action) .
¶10 Regarding the appellant’s assertion that she resigned under duress because
she was provided only 24 hours to decide whether to resign or face removal, the
U.S. Court of Appeals for the Federal Circuit has found under similar
6
circumstances that giving an appellant approximately 1 hour to decide whether to
resign or face discipline did not make the decision involuntary because the
agency was not obligated to make the offer at all. See Parrott v. Merit Systems
Protection Board , 519 F.3d 1328 , 1331, 1335 (Fed. Cir. 2008). Thus, we find
that the administrative judge properly found that the appellant failed to
nonfrivolously allege duress.
¶11 Additionally, the appellant appears to assert on review that her resignation
was the result of race and age discrimination and retaliation for her prior equal
employment opportunity activity . PFR File, Tab 1 at 4. We have examined these
claims insofar as they relate to the involuntariness of her decision to resign, and
conclude that they fail to raise a nonfrivolous allegation of involuntariness. See
Axsom, 110 M.S.P.R. 605 , ¶¶ 12, 17.
¶12 Finally, t o the extent the appellant has submitted documents on review in an
effort to support her involuntary resignation claim , she has provide d no showing
as to why these documents were unavailable below. PFR File, Tab 8 at 17 -27.
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. Postal Service , 3 M.S.P.R. 211 , 214 (1980). Therefore , we have
not considered these documents . Nevertheless, e ven if we were to consider the
appellant’s untimely submitted evidence , the docume nts do not support a
nonfrivolous allegation that her resignation was involuntary and they are, thus,
immaterial . See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980).
Accordingly, we find no basis upon which to disturb the initial decision.
7
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 t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the 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.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 r epresentative receives this decision. If the action involves a claim of
discrimination 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 r equirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 “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.
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.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEWIS_JOHNSON_ROSALAND_PH_315H_16_0437_I_1_FINAL_ORDER_1995876.pdf | 2023-01-24 | null | PH-315H | NP |
3,725 | https://www.mspb.gov/decisions/nonprecedential/SANFORD_GLORIA_J_DE_3443_19_0125_I_1_FINAL_ORDER_1995905.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GLORIA J. SANFORD,
Appellant,
v.
OFFICE OF SPECIAL CO UNSEL,
Agency.
DOCKET NUMBER
DE-3443 -19-0125 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria J. Sanford , Littleton, Colorado, pro se.
Amy Beckett , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt 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 her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administ rative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the ini tial 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 ei ther 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 tha t, 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 According to t he appellant, an employee with the Department of Veterans
Affairs (VA), she filed a retaliat ion complaint with the VA Whistleblowers
Accountability Office. Initial Appeal File (IAF) , Tab 1 at 5, 12. She alleges that
the complaint was not handled properly and was eventually closed. Id. She
subsequently filed a complaint with the Office of Spec ial Counsel (OSC), and
claims to have been told by OSC that they would request and obtain the
documents regarding her complaint possessed by the VA Whistleblowers
Accountability Office. Id. at 5.
¶3 On November 28, 2018, OSC closed its investigation into t he appellant’s
complaint. Id. at 21 -22. OSC’s close -out letter informed the appellant that she
could seek corrective action for any personnel action taken against her because of
protected disclosures included in her OSC complaint by filing an IRA appeal with
the Board. Id.
3
¶4 On February 11, 2019, the appellant filed an appeal with the Board. IAF,
Tab 1. Rather than appealing the alleged retaliation against her by the VA,
however, the appellant listed OSC as the agency that took the action and made the
decision she was appealing. Id. at 1. According to the appellant, OSC was
unresponsive, failed to request and obtain various documents from the VA, and
generally mishandled her complaint . Id. at 5.
¶5 The administrative judge, questioning the Board’s jur isdiction, issued an
order to the appellant to establish that the Board has IRA jurisdiction over OSC.
IAF, Tab 3 at 1. In the same order, the administrative judge instructed the
appellant on how to file an IRA appeal against her employing agency based o n
alleged whistleblower retaliation. Id. at 2-3. The appellant responded confirming
that she did not intend to file an IRA appeal against the VA and again laid out the
facts allegedly demonstrating how OSC had mish andled her case. IAF, Tab 4
at 4-5. Th e appellant additionally asked the administrative judge to inform her
who, if not the Board, has jurisdiction over the matter. Id.
¶6 On February 22, 2019, the administrative j udge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).
He found that an assertion that OSC mishandled a complaint is a matter outside
the Board’s jurisdiction . ID at 1 -3. Accordingly, he concluded that the appellant
had fa iled to make a nonfrivol ous jurisdictional allegation. Id.
¶7 The appellant has filed a petition for review, and OSC has responded.
Petition for Review (PFR) File, Tabs 1, 3. In her petition, the appellant claims
that under the Freedom of Information Act ( FOIA) , she requested that the
administrative judge provide information as to who has the authority to oversee
her case against OSC , and he failed to respond . PFR File, Tab 1 at 3 , 5. She
further claims that, under the First Amendment of the Constitution, she has a right
to petition the G overnment for a redress of grievances, which gives her the right
to seek relief for a wrong through the courts or other governmental action. Id.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 When an appellant disagrees with OSC’s d ecision to close a whistleblower
complaint, she can bring an IRA appeal against the employing agency and seek
corrective action . 5 U.S.C. §§ 1214 (a)(3), 1221(a). Here, rather than challenging
the merits of her underlying personnel action, the appellant is challenging OSC’s
handling of her case and its decision to close her complaint. IAF, Tab 4 at 4 -5.
This is not a matter under the Board’s jurisdiction.
The ap pellant has not made a nonfrivolous allegation of Board jurisdiction over
her IRA appeal.
¶9 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that (1) she ma de 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). Salerno v. Department of the
Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
¶10 The appellant seeks to challenge OSC’s failure or refusal to pr operly
resolve her complaint. However, the appellant has not alleged either below or on
review that OSC’s action constitute s any of the pe rsonnel actions enumerated in
5 U.S.C. § 2302 (a). An inve stigation generally is not considered a personnel
action, although the Board may consider whether the investigation was pretext to
take a closely related personnel action. Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537, ¶ 22 n.12 (2013). Here, there is no allegation that OSC’s
allegedly deficient investigation was a pretext to take a personnel action.
Without a personnel action taken by OSC, the named party in this case, the Board
lacks jurisdiction over the appellant’s IRA appeal . Carson v. Merit System
Protection Board , 680 F. App’x 1016, 1017 (Fed. Cir. 2017) (per curia m)
(affi rming the Board’s determination that the allegation of OSC’s failure to
5
investigate or resolve the whistleblower complaint did not describe a personnel
action).2
Even outside the context of a traditional IRA appeal, the Board does not
otherwise have jurisd iction.
¶11 The appellant argues, both below and on review, that OSC failed to properly
request certain documents during the course of its investigation, failed to properly
investigate her case, and improperly closed her complaint. IAF, Tab 1 at 5;
PFR File, Tab 1 at 3 . The Board does not have jurisdiction over all matters
alleged to be unfair or incorrect . Miller v. Department of Homeland Security ,
111 M.S.P.R. 325 , ¶ 14 (2009) , aff’d per curiam , 361 F. App’x 134 (Fed. Cir.
2010) . Rather, the Board’s jurisdiction is limited to those matters over which it
has been given jurisdiction by law, rule, or regulation. Clark v. U.S. Postal
Service , 118 M.S.P.R. 527 , ¶ 7 (2012). There is no law, rule, or regulation,
pointed to by the appellant or otherwise available, w hich gives the Board
jurisdiction to review OSC’s handling of a case or decision to close a file. See
5 U.S.C. § § 1211 -1219 (establishing OSC and detailing such matters as its
process and procedur es for conducting investigations without providing any
statutory right to appeal OSC’s action or inaction) ; 5 C.F.R. § 1201.3 (a) (listing
those matters over which the Board has appella te jurisdiction) . Although “OSC
must . . . investigate an alleged prohibited personnel practice involving reprisal s
against whistleblowing to the extent necessary to determine whether there ” are
reasonable grounds to believe that a prohibited personnel practice has occurred
and “issue reasons for terminating an investigation, ” the Board lacks authority to
enforce these statutory requirements. Wren v. Merit Systems Protection Board ,
681 F.2d 867 , 871 -72 (D.C . Cir. 1982); see also 5 U.S.C. § 1214 (a)(1)(A) , (2)(A)
(reflecting th e statutory requirements referenced in Wren ).
2 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Depart ment
of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9 (2016).
6
¶12 The appellant also argues on review that the administrative judge erred by
not responding to her FOIA request , and seems to suggest that the Board thus has
jurisdiction to review the errors of the initial deci sion. PFR File, Tab 1 at 3 -5.
The record reflects that, in response to the administrative judge’s order on
jurisdiction, the appellant asked , “if the MSPB does not have jurisdiction over t he
improper handling of an OSC C ase please provide who does.” IAF, Tab 4 at 4.
The appellant did not cite to FOIA or otherwise comply with the Board’s
procedures for making such a request. 5 C.F.R. § 1204.11 . Further, an alleged
denial of a FOIA request is properly appealed to the Board’s Chairman under the
procedures in 5 C.F.R. § 1204.21 , and not by way of a petition for review. See
Normo yle v. Department of the Air Force , 65 M.S.P.R. 80 , 83 (1994) ( recognizing
that the Board is not authorized to consider claims of FOIA vi olations in the
context of a petition for review ); see also http://www.mspb.gov/foia/request.htm
(last visited Jan. 23, 2023) (providing information to requestors about MSPB’s
FOIA process) .
¶13 The appell ant additionally argues that, under the Right to Petition clause of
the First Amendment, she has the right to petition the G overnment for redres s of
grievances and to ask the G overnment to provide relief for a wrong. PFR File,
Tab 1 at 3 -5. The appellant is seemingly arguing that the Right to Petition
affords her the right to seek relief from any Federal Government agency , but cites
no authority for this interpretation of the First Amendment . In the context of an
IRA appeal, the Board lacks jurisdiction over First Amendment claims. Van Ee v.
Environmental Protection Agency , 64 M.S.P.R. 693 , 699 (1994). While the
appellant may be correct that the First Amendment affords her the right to sue the
Government, we are without authority to address her claim . See Dooley v.
Department of Veterans Affairs , 112 M.S.P.R. 110 , ¶¶ 5, 8 (2009) (explaining that
7
the Board lacks appellate jurisdiction over an appellant’s First Amendment claim
absent jurisdiction over an underlying appealable action).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 ho w courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fail ure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 We express no opinion as to whether the appellant may be able to seek redress for her
claims elsewhere. See Wren , 681 F.2d at 872 (finding that “if the OSC fails to perform
its statutory duties . . . relief —if it lies at all —must be sought in a separate action in the
district court to compel the OSC to perform its statutory duties”) (citing 5 U.S.C.
§§ 702, 704); see also Securiforce International America, LLC v. United States ,
879 F.3d 1354 , 1360 (Fed. Cir. 2018 ) (finding that 5 U.S.C. § 702 provides a cause of
action for nonmoneta ry claims against the Government, so long as “there is no other
adequate remedy in a court”) (citing 5 U.S.C. § 704 ).
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
9
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your rep resentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any req uirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representati ve receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provis ion that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellan ts to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroa ctive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:/ /www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept r epresentation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.us courts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SANFORD_GLORIA_J_DE_3443_19_0125_I_1_FINAL_ORDER_1995905.pdf | 2023-01-24 | null | DE-3443 | NP |
3,726 | https://www.mspb.gov/decisions/nonprecedential/MOLNAR_ELMER_PH_3443_17_0072_I_1_FINAL_ORDER_1995909.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ELMER MOLNAR,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-3443 -17-0072 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elmer Molnar , Pittsburgh, Pennsylvania, pro se.
Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, 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 initial decision, which
dismissed for lack of jurisdiction his appeal claiming the agency violated the
American Postal Workers’ Union collective bargaining a greement (CBA) when it
incorrectly calculated his seniority upon reassignment from a Letter Carrier
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
position to a Custodian position . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, w as not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 On petition for review, the appellant argues denial of his appropriate
seniority is a prohibited personnel practice because his correct appointment was
denied and his future promotions and financial benefits will be delayed, and
therefore, the Board has jurisdiction over his appeal .
¶3 The Board generally lacks juri sdiction over a reassignment that does not
result in a reduction in pay or grade. White v. U.S. Postal Service , 117 M.S.P.R.
244, ¶ 13 (2012); Lopez v. Department of the Navy , 108 M.S.P.R. 384 , ¶ 18
(2008). The administrative judge properly found that the appell ant did not assert
that he had been subjected to a reduction in grade or pay in connection with his
reassignment. Initial Appeal File , Tab 4, Initial Decision (ID) at 3. To the extent
the appellant argues that the alleged violation of the CBA constitutes a prohibited
personnel practice, the Board cannot consider his claim absent an otherwise
appealable action. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 16
(200 7); ID at 4. After fully considering the filings in this appeal, we c onclude
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).
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 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).
If you submit a petition 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:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the 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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEO C by regular U.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 requ iring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MOLNAR_ELMER_PH_3443_17_0072_I_1_FINAL_ORDER_1995909.pdf | 2023-01-24 | null | PH-3443 | NP |
3,727 | https://www.mspb.gov/decisions/nonprecedential/MCVAY_DAVID_DA_0752_16_0325_I_1_FINAL_ORDER_1995915.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID MCVAY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -16-0325 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John R. Macon , Memphis, Tennessee, for the appellant.
James M. Reed and Jason Hardy , Clearwater, 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 appeal for lack of jurisdiction because he did not prove that he was
constructively suspended when the agency failed to provide him duties within his
medical restrictions caused by an injury for which the Office of Workers’
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Compensation Programs denied compensation. On petition f or review, the
appellant argues that he suffered an appealable suspension and was denied due
process by the agency’s actions. 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. 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).
Alth ough we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how court s will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at 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 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 informat ion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any s uch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCVAY_DAVID_DA_0752_16_0325_I_1_FINAL_ORDER_1995915.pdf | 2023-01-24 | null | DA-0752 | NP |
3,728 | https://www.mspb.gov/decisions/nonprecedential/COY_WILLIAM_DC_3330_17_0230_I_1_REMAND_ORDER_1995923.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM COY,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-3330 -17-0230 -I-1
DATE: January 2 4, 2023
THIS ORDER IS NONPRECEDENTIAL1
William Coy , Carlisle, Pennsylvania , pro se.
Gabriel A. Hindin and Neil M. Robinson , Esquire, Washington, D.C., 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) on the basis that he failed to meet the time
limit for filing a complaint with the Secretary of Labor under 5 U.S.C.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
§ 3330a (a)(2)(A) . For the reasons discussed below, we GRANT the appellant’s
petition for rev iew and REMAND the case to the Board’s Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The relevant background information, as set forth in the initial decision, is
not in material dispute. On December 3, 2013, the appellant applied for the
Director of Compe nsation and Benefits position with the agency. Initial Appeal
File (IAF), Tab 10, Initial Decision (ID) at 2. Ten days later, the agency notified
him that he did not meet the experience requirements and that his application
would not be considered. Id.
¶3 On August 4, 2015, an agency human resources specialist emailed the
appellant and offered to place him on the agency’s priority consideration list for
the position because, following an internal audit, the agency determined that he
was qualified for the po sition. Id. The appellant was eventually hired into the
position effective November 28, 2016. Id.
¶4 After entering the position, the appellant came to believe that his original
disqualification for the position was due to a violation of his veterans’ pref erence
rights, and he subsequently filed a complaint with the Department of Labor
(DOL). Id. On December 19, 2016, DOL determined that the appellant’s
complaint was untimely filed and closed its investigation. Id.
¶5 On January 3, 2017, the appellant filed a request for corrective action with
the Board. IAF, Tab 1. The administrative judge ordered the appellant to
demonstrate that his appeal was within the Board’s VEOA jurisdiction and that
his complaint with DOL was either timely filed or that the 60 -day deadline for
filing a veterans’ preference complaint should be equitably tolled. IAF, Tab 3.
After considering the parties’ replies, the administrative judge denied the
appellant’s request for corrective action without holding the requested hearing
beca use he found that there was no genuine dispute of material fact and that the
3
appellant failed to establish that the deadline for filing a veterans’ preference
complaint with DOL should be equitably tolled. ID at 1-8.
¶6 The appellant has filed a petition for review of the initial decision, and the
agency has filed a response opposing the petition. Petition for Review (PFR)
File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 A preference eligible who alleges that an agency has violated his rights
regarding any statute or regulation relating to veterans’ preference may file a
complaint with the Secretary of Labor. 5 U.S.C. § 3330a (a)(1)(A). Pursuant to
statute, such a complaint must be filed with the Secretary of Labor “within
60 days after the date of the alleged violation.” 5 U.S.C. § 3330a (a)(2)(A).
¶8 This 60 -day time limit for filing a complaint is subject to equitable tolling.
Bent v. Dep artment of State , 123 M.S.P.R. 304 , ¶ 12 (2016). Equitable tolling is
a rare remedy that is to be applied in unusual circumstances an d generally
requires a showing that the litigant has been pursuing his rights diligently and
some extraordinary circumstances stood in his way. Heimberger v. Department
of Commerce , 121 M.S.P.R. 10 , ¶ 10 (2014). For example, a filing period may be
suspended for equitable reasons when a complainant has been induced or tricked
by his adversary into allowing a deadline to pass. See id.
¶9 The appellant argues on review that the administrative judge erred in
finding that he simply “presumed another veteran had been selected for the
position.” PFR File, Tab 1 at 4; ID at 7. He asserts that an agency human
resources specialist led him to believe that another veteran was selected for the
position , which he presumed meant a veteran with equal preference was selected .
PFR File, Tab 1 at 4. He contends that the agency thereby induced or tricked him
into missing the filing deadline. Id. at 5.
¶10 The initial decision accurately reflects the appellant’s statement, made in
response to the jurisdictional order, that he “presumed that another veteran with
4
equal veterans[’] status to [himself] was selected after [he] was originally
disqualified.” IAF, Tab 4 at 5; ID at 7. He did not allege below, as he does on
review, that his presumption was based on any statement or action by any agency
official. Generally, the Board will decline to consider an argument raised for the
first time on review absen t a showing that the argument is based on new and
material evidence not previously available despite the petitioner’s due diligence.
Hodges v. Office of Personnel Management , 101 M.S.P.R. 212 , ¶ 7 (2006);
5 C.F.R. § 1201.115 (d). Because the appellant has failed to make such a
showing, we decline to consider his argument. Accordingly, we deny his request
for corrective action under VEOA and affirm the administrative judge’s findings
on this claim . ID at 5 -8; see Garcia v. Depar tment of Agriculture , 110 M.S.P.R.
371, ¶ 13 (2009).
¶11 We nevertheless remand this appeal for consideration of whether the
appellant has raised a claim under the Uniformed Service Employment and
Reemploym ent Rights Act of 1994 (USERRA) (codified at 38 U.S.C.
§§ 4301 -4333). To establish Board jurisdiction over a USERRA discrimi nation
appeal, an appellant must make a nonfrivolous allegation of the following : (1) he
performed duty or has an obligation to perform duty in a uniformed service of the
United States; (2) the agency denied him initial employment, reemployment,
retention , promotion, or any benefit of employment; and (3) the denial was due to
the performance of duty or obligation to perform duty in the uniformed service.
Williams v. Department of the Treasury , 110 M.S.P.R. 191 , ¶ 8 (2008); see
5 C.F.R. § 1201.57 .
¶12 The appellant has alleged that the agency erroneously found him
unqualified f or the position and hired a non veteran. IAF, Tab 1 at 4 -5, Tab 4
at 5; PFR File, Tab 1 at 4 -5. Although the appellant, who is pro se, did not
specifically refer to USERRA in his pleadings, w e find that his allegations
5
warrant further consideration as potential USERRA claims .2 Sears v. Department
of the Navy , 86 M.S.P.R. 76, ¶ 12 (2000). Because the appellant was never
apprised of his rights and burdens under USERRA, we remand this appeal for
adjudication of his potential USERRA claim.3 Id.
ORDER
¶13 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.4
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
2 There is no time limit to filing a USERRA appeal . 5 C.F.R. § 1201.22 (b)(2).
3 An individual may choose to file a USERRA complai nt with the Secretary of Labor,
and have the Secretary investigate his complaint. 38 U.S.C. § 4322 (a). If the
individual files such a complaint with the Secretary of Labor, he may thereafter fil e an
appeal with the Board regarding his USERRA claim pursuant to 38 U.S.C. § 4324 (b)(2).
If the individual does not elect to apply to the Secretary f or assistance under
section 4322 (a), he may f ile directly with the Board. 38 U.S.C. § 4324 (b)(1).
4 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. | COY_WILLIAM_DC_3330_17_0230_I_1_REMAND_ORDER_1995923.pdf | Date not found | null | DC-3330 | NP |
3,729 | https://www.mspb.gov/decisions/nonprecedential/JONES_VONDELISE_CH_0831_20_0072_I_1_FINAL_ORDER_1995939.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VONDELISE JONES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0831 -20-0072 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vondelise Jones , Stow, Ohio, pro se.
Tiffany Slade , 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 issued by the Office of Personnel
Management (OPM), denying her request for a former spouse survivor annuity .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
For the reasons set forth belo w, 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 November 8, 2019, the appellant filed an appe al challenging OPM’s
reconsideration decision denying her request for a former spouse survivor
annuity. Initial Appeal File (IAF), Tab 1 at 4, 11 -14. After affording the
appellant her requested hearing, the administrative judge issued a n initial decision
on June 24, 2020, affirming OPM’s reconsideration decision. IAF, Tab 23, Initial
Decision (ID) at 2, 6 -7. The initial decision included instructions that it would
become final on July 29, 2020, unless a petition for review was filed by that date.
ID at 7.
¶3 On October 4, 2021, the Clerk of the Board received a letter from the Equal
Employment Opportunity Commission (EEOC) denying the appellant’s petition
for review of the initial decision referenced above. PFR File, Tab 1.
Subsequently, o n October 20, 2021, the Clerk of the Board received a submission
from the appellant that included the EEOC letter via U.S. mail, postmarked
October 19, 2021. Petition for Review (PFR) File, Tab 2. She confirmed via
telephone on November 1, 2021, that her submission was a petition for review of
the June 24, 2020 , initial decision. PFR File, Tab s 2, 3. The Acting Clerk of the
Board issued an acknowledgment letter, advising the appellant that her petition
for review was untimely filed and informing her tha t she must establish good
cause for the untimely filing. PFR File, Tab 3 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 T ime Limit. Id. at 2, 7 -8.
The appellant filed the required motion. PFR File, Tab 4. The agency has not
responded to the petition for review.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the 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 June 24, 2020 , and correctly informed the appellant that she
was required to file any petition for review no later than July 29, 2020 . ID at 1,
7. The appellant filed her petition for review on October 19, 202 1. PFR File,
Tab 2 at 8 ; Tab 3 at 1. As such, we find that the petition for review is untimely
filed by over 1 year and 2 months.
¶5 The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo , 120 M.S.P.R. 69 4, ¶ 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 she exercised due
diligence or o rdinary prudence under the particular circumstances of the case.
Palermo , 120 M.S.P.R. 694, ¶ 4; Alonzo v. Department of the Air F orce ,
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 reas onableness of her
excuse and her showing of due diligence, whethe r she is proceeding pro se,
and whether she has presented evidence of the existence of circumstances beyond
her control that affected her ability to comply with the time limits or of
unavoida ble casualty or misfortune which similarly shows a causal relationship to
her inability to timely file her 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). The Board may decline to excuse a pro se
appellant’s minimal delay when she fails to establish that she acted with due
4
diligence. See, e.g., Lockhart v. Office of Personnel Management , 94 M.S.P.R.
396, ¶¶ 7 -8 (2002).
¶6 Although the appellant is pro se, the remaining factors disfavor finding that
good cause exists for her delay in filing. Her filing delay of over 1 year and
2 months i s significant. See Wirzberger v. Department of the Treasury ,
101 M.S.P.R. 448 , ¶ 8 (noting that a 1 -year delay in filing a peti tion for review
was significant, even when considering her pro se status), review dismissed ,
212 F. App’x 965 (Fed. Cir. 2006). We have also considered the appellant’s
assertion that the filing deadline should be waived because of her various
physical and mental health conditions. PFR File, Tab 4 at 6 -9. The Board will
find good cause for an untimely filing when a party demonstrates that
she suffered from an illness or medical condition that affected her ability to file
on time. See Pirkkala v. Departme nt of Justice , 123 M.S.P.R. 288 , ¶ 19 (2016).
To establish that an untimely filing was the result of an illness, the party must
(1) identify the time period during which she suffered from the illness, (2) submit
medical evidence showing that she suffered from the alleged illness during that
time period, and (3) explain how the illness prevented her from timely filing her
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 incap acitation, only that
her ability to file was affected or impaired by the medical condition. Id.
¶7 In her motion to waive the time limit for filing a petition for review the
appellant states that “[she] was not [her]self mentally , [and she] didn’t get much
personal care in 2020 cause[sic] of COVID -19.” PFR File, Tab 4 at 8. With her
motion, she provides documentation to support her claim that her condition s
hindered her ability to timely file her petition for review, including an after -visit
summary dated D ecember 14, 2020, a problem list of her physical and mental
health conditions , and what appears to b e an appointment list, noting
a lymphedema daily visit on November 11, 2020 . Id. at 3-5. The problem list
5
includes, amongst other things, malignant neopla sm of the thyroid gland, primary
hyperparathyroidism, type 2 diabetes mellitus with hyperglycemia, peripheral
nervous system disorder, paranoid schizophrenia, intellectual disability, rectal
bleeding, and lower abdominal pain. Id. at 4.
¶8 Although the appel lant generally states that her mental and physical health
prevented her from filing her petition for review in a timely manner, she has not
specifically explained how her conditions prevented her from filing a petition for
review or motion for an extension of time. Id. at 6 -9. As noted above,
the appellant’s medical documents identify her various medical conditions;
however, they fail to explain how her illnesses prevented her from timely filing a
petition for review for the duration of the relevant period between the issuance of
the initial decision on June 24, 2020, and the deadline for filing her petition for
review on July 29, 2020. Id. at 3 -5; see Pirkkala , 123 M.S.P.R. 288 , ¶ 20
(finding that the appellant f ailed to explain how her shoulder problems affected
her ability to file a timely 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
addres sed her condition during the relevant time period, and because she failed to
explain how her medical conditions prevented her from making a timely fili ng or
requesting an extension).
¶9 Accordingly, we conclude that the appellant has failed to show that she
exercised due diligence or ordinary prudence in this case that would warrant a
finding of good cause for the delay in filing her petition for review. See Shiflett
v. U.S. Postal Service , 839 F.2d 669 , 670 -74 (Fed. Cir. 1988) (noting that the
Board may grant or deny the waiver of a time limit for filing an appeal, in the
interest of justice, after considering all the facts and circumstances of a par ticular
case).
6
¶10 The appellant also motion s to submit additional evidence “that was not
readily available when the records closed” in her timeliness motion .2 PFR File,
Tab 4 at 7, 10 -11. The appellant’s evidence address es the merits of h er appeal
and is not relevant to the dispositive timeliness issue. See Brockman v.
Department of Defense , 108 M.S.P.R. 490 , ¶ 8 (2008) (observing that
an appellant’s documents submitted for the first time on review and arguments on
the merits of his appeal were not relevant to the untimeliness of his petition for
review). We, therefore, deny the appellant’s motion.
¶11 Consequently, we dismiss the pe tition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding OPM’s denial of the appellan t’s request for a former spouse
survivor annuity .
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).
2 In her motion to waive the time limit for filing a petition for review , the appellant
motions to submit the initial decision in the instant appeal and 5 U.S.C. § 8467 as
additional evidence supporting her entitlement to a former spouse survivor annuity.
PFR File, Tab 4 at 7, 10 -11. The initial decision is in the record below, IAF, Tab 23 ;
therefore, it does not constitute new evidence. See Meier v. Department of the Interior ,
3 M.S.P.R . 247, 256 (1980 ). Similarly , the law cited by the appellant is not new and
was in effect when she filed h er appeal from OPM ’s reconsideration decision . She has
not shown that the provisions contained therein were not otherwise available, despite
her due diligence. See 5 C.F.R. § 1201.115 ; Grassell v. Department of Transportation,
40 M.S.P.R. 554 , 564 (1989) . Therefore, as set forth above, we decline to consider this
evidence.
3 Since the issuance of the initial dec ision in this matter, the Board may have updated
the notice 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
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
10
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 “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.
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 petitio ns for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JONES_VONDELISE_CH_0831_20_0072_I_1_FINAL_ORDER_1995939.pdf | 2023-01-24 | null | CH-0831 | NP |
3,730 | https://www.mspb.gov/decisions/nonprecedential/HERRINGDINE_ANN_M_AT_0831_17_0179_I_1_FINAL_ORDER_1995951.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANN M. HERRINGDINE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -17-0179 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas M. Leveille , Esquire, Knoxville, Tennessee, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management (OPM)
finding that she was not eligible for an increased survivor annuity . Generally, we
grant peti tions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 petition for review . Except as
expressly MODIFIED by this final order to supplement the administrative judge’s
analysis of the appellant’s claim that her late husband’s election was invalid on
the basis of mental incomp etence and to address her claim that her consent to his
election resulted from fraud in the inducement, we AFFIRM the initial decision .
BACKGROUND
¶2 The appellant’s late husband retired from the U.S. Postal Service under the
Civil Service Retirement System (CSRS) effective November 2, 2011. Initial
Appeal File (IAF), Tab 6 at 54. O n her husband’s application for retirement,
Standard Form (SF) 2801, he chose a reduced annuity with a partial survivor
annuity for the appellant equal to 55 percent of $22 per year.2 Id. at 45, 48. The
appellant signed a “Spouse’s Consent to Survivor Election” form, SF 2801 -2,
before a notary public on October 7, 2011, indicating her consent to her
husband’s election of a partial survivor annuity for her of 55 percent of $22 per
2 The amount elected by the appellant’s husband, $22 per year , is the lowest dollar base
that may be elected for a survivor annuity . OPM Benefits Administ ration Letter,
No. 00-102 (Mar. 8, 2000). F ifty-five percent of $22 per year provides a survivor
benefit of $1 per month and allows the surviving spouse to continue Federal Employee s
Health Benefit s coverage . Id.
3
year.3 Id. at 48. The appellant’s husband passed away on April 21, 2015 , and she
filed an application for death benefits with OPM. Id. at 18 -23. OPM approved
the appellant’s application and began paying her a survivor annuity benefit in the
amount of $5 per month .4 Id. at 6, 14.
¶3 On June 19, 2015, the appellant requested that OPM review its decision
regarding the amount of her monthly survivor annuity benefit. Id. at 16 -17. She
stated that she was “total ly shocked” by the amount of her monthly survivor
annuity and that she would not have signed the consent form if someone had
explained to her that she would only receive $5 per month after her husband’s
death. Id. at 16. She stated that her husband told her that, in the event of his
death, she would receive a gross monthly annuity of $2,647 , as indicated on a
September 9, 2011 annuity estimate printout , or about half of his current monthly
annuity benefit. Id. at 16 , 57. She further stated that her husb and must not have
understood the effect of his election and that, in the years leading up to his
retirement and thereafter , he suffered from a number of medical conditions and a
“deteriorated” mental status. Id at 16 -17. In a March 1, 2016 initial decisi on,
OPM found that, given the joint election of the appellant and her husband at the
time of his retirement, the rate of $5 per month was correct. Id. at 12.
¶4 The appellant requested reconsideration of OPM’s decision , again stating
that her late husband told her she would receive about half of his current monthly
gross annuity benefit after his death and that he suffered from a number of
3 The record also contains a signed and notarized SF 2801 -2 dated September 16, 2011 ,
indicating the appellant’s consent to her husband’s election of a partial survivor annuity
in the amount of 55 percent of $22 per year. IAF, Tab 3, Exhibit 2 at 5. It appears that
the appellant’s late husband also checked the option for an insurable interest survivor
annuity on this form, which he then covered with his initials . Id. Although OPM
mentioned the September 16, 2011 form in its March 1, 2016 initial dec ision, IAF,
Tab 6 at 12, it based its reconsideration decision on the SF 2801 -2 executed on
October 7, 2011, id. at 6.
4 The record reflects that the appellant’s monthly annu ity increased to $6 in
December 2016. IAF, Tab 6 at 15. It is unclear, however , why the appellant receives
$5 or $6 per month , given that 55 percent of $22 per year amounts to $1 per month.
4
physical and mental conditions around the time of his retirement . IAF, Tab 6
at 11. She further stated that her late husband showed her a retirement plan report
dated September 30, 2011, showing a gross monthly survivor annuity benefit of
$2,647 , and that she signed the spousal consent form “without questioning how it
was computed.” Id. In a final decision dated November 15, 2016, OP M affirmed
its initial decision, stating that the appellant freely consented to her husband’s
election when she signed the SF 2801 -2 on October 7, 2011 , and that OPM had no
record that she contested her consent at any time between the date she signed it
before a notary an d her husband’s death. Id. at 6-8. OPM further noted that it
had no record showing that her late husband was incompetent at the time of his
retirement and that, although he could have changed his election within
18 months of making it, OPM had no record of him attempting to do so. Id.
¶5 The appellant timely appealed OPM’s final decision to the Board, arguing
as follows: she was “misinformed as to what [her] survivor benefit would be by
information [shown to her by her] husband ”; her husband did not understand his
election due to his medical condition s; and she signed the spousal consent form
believing that , in the event of her husband’s death, she would receive half of his
monthly annuity benefit. IAF, Tab 1 at 3. The appellant submitted medical
records showing that, from 2010 through 2013, her husband suffered from a
number of serious medical conditions and underwent several surgeries, including
amputation of one of his toes followed by amputation of his entire left forefoot.
IAF, Tab 3, Exhibit 3. She also submitted a letter from her husband’s former
supervisor opining that the appellant’s husband “was becoming mentally
challenged at the end of 2010 . . . especially at ret irement.” IAF, Tab 3,
Exhibit 8. In another submission , the appellant stated that “[y]es, I did sign the
retirement papers without my [sic] questioning the figures simply based on my
belief that what I was shown and told to be the truth. I would never h ave signed
anything had I known that all I would be eligible for was $5.” IAF, Tab 8.
5
¶6 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant’s consent was valid and that
OPM met it s burden of showing that it sent the required notice to the appellant’s
late husband regarding his option to provide or increase a spouse’s survivor
annuity within 18 months of his retirement . IAF, Tab 11, Initial Decision (ID).
She further found tha t the evidence did not support the appellant’s assertion that
her husband was mentally incompetent when he retired . ID at 4 n.3. Thus, she
affirmed OPM’s final decision. ID at 7.
¶7 The appellant, now represented by counsel, has filed a petition for review of
the initial decision arguing that she and her husband did not make a valid joint
election of a partial survivor annuity because of the following : (1) her husband
was mentally incompetent at the time of his election ; (2) her consent was induced
by fraud ; and (3) the spousal consent form was confusing and fails to meet the
notice and consent requirements of the Spouse Equity Act. Petition for Review
(PFR) File, Tab 1. The agency has responded in opposition to the ap pellant’s
petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The surviving spouse of a CSRS retiree is entitled to a survivor annuity in
the amount of 55 percent of the retiree’s annuity unless the retiree elected not to
provide a survivor annuity or to provide only a partial survivor annuity , and the
spouse consented to the election in writing . 5 U.S.C. §§ 8339 (j)(1), 8341(b)(1);
Cerilli v. Office of Personnel Management , 119 M.S.P.R. 404 , ¶ 5 (2013) ;
5 C.F.R. § 831.614 . A retiree may, within 18 months after retiremen t, choose to
elect a survivor annuity for the spouse to whom he was married at retireme nt if he
did not previously do so or to increase the size of such an annuity. 5 U.S.C.
§ 8339 (o)(1); Cerilli , 119 M.S.P.R. 404 , ¶ 5; 5 C.F.R. § 831.622 (b)(1).
¶9 Here, it i s undisputed that the appellant’ s late husband timely elected a
partia l survivor annuity equal to 55 percent of $22 per year for the appellant and
6
that she signed a SF 2801 -2 before a notary public on October 7, 2011, indicating
her consent to his election . IAF, Tab 6 at 45, 48. In addition, the appellant has
not challenged, and we discern no basis to disturb, OPM’s finding that the
appellant’s late husband did not seek to amend his survivor annuity election
during the 18 months following his retirement, despite being notified of his
opportunity to do so.5 Id. at 7, 24 -31. As noted above, however, the appellant
argues on review that she is entitled to an increased survivor annuity because she
and her late husband did not make a valid joint election of a partial survivor
annuity. PFR File, Tab 1.
¶10 The U.S. Court of Appeals for the Federal Circuit has held that t he
voluntary signing of a Government form for the purpose of evidencing agreement
with the terms of the form is binding, and the Government is entitled to rely on
the act of signing absent a showing of fraud, duress, or mental incompetence .
Braza v. Office of Personnel Management , 598 F.3d 1315 , 1319 (Fed. Cir. 2010)
(en banc); Collins v. Office of Personnel Management , 45 F.3d 1569 , 1573 (Fed.
Cir. 1995) . The appellant, as the applicant for a survivor annuity and as the
individual seeking to change the annuity agreement of record , has the burden to
show her entit lement to the benefit she seeks by preponderant evidence . See
Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 140 -41 (Fed. Cir.
1986) ; Dombeck v. Office of Personnel Management , 43 M.S.P.R. 43 , 45-46
(1989) . A preponderance of the evidence is that degree of relevan t evidence that
a reasonable person, considering the record as a whole, would accept as sufficient
5 OPM has a statutory obligation to notify annuitants annually that they have 18 months
after retirement to provide or increase a spouse’s sur vivor annuity. 5 U.S.C.
§ 8339 (o)(6); Cerilli , 119 M.S.P.R. 404 , ¶ 6. OPM bears the burden of proving that the
notice was sent as well as proving the contents of the notice. Cerilli , 119 M.S.P.R. 404,
¶ 6. The administrative judge found, and the appellant does not dispute on review, that
OPM met its burden of showing that it sent the required notice to the appellant’s late
husband regarding his option to change his surv ivor annuity election within 18 months
of his retirement. ID at 5-6. We have reviewed the record and discern no basis to
disturb this finding. See IAF, Tab 6 at 24 -31.
7
to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201. 4(q).
The appellant has not shown by preponderant evidence t hat her late husband was
mentally incompetent as to render his election invalid .
¶11 In the initial decision, the administrative judge found that the record
evidence was insufficient to establish that the appellant’s late husband was
mentally incompetent at the time of his retirement and survivor annuity election .
ID at 4 n.3. The appellant challenges this finding on review, arguing that the
administrative judge and OPM gave her argument “short shrift .” PFR File, Tab 1
at 12 -16. She further argues that the record evidence establishes that her late
husband was mentally inc ompetent at the time of his survivor annuity election
and urges the Board to find that his election was not effective . Id. For the
reasons that follow, we agree with the administrative judge’s determination that
the appellant has not met her burden to show that her late husband’s survivor
annuity election was invalid on the basis of mental incompetence. However, we
modify the initial decision consistent with this section to further address the
appellant’s argument and the medical evidence.
¶12 Annuity elections are only valid if made by mentally competent individuals.
Dombeck , 43 M.S.P.R. at 45 -46. Although such competency is presumed absent
challenge, the spouse can demonstrate that the annuitant lacked the requisite
capacity to make a valid election. Pooler v. Office of Personnel Management ,
23 M.S.P.R. 51 , 53 (1984). The relevant standard for mental incompetence is “an
inability to handle one’ s personal affairs because of either physical or mental
disease or injury.” Rapp v. Office of Personnel Management , 483 F.3d 1339 ,
1341 (Fed. Cir. 2007); Magelitz v. Office of Personnel Management ,
118 M.S.P.R. 472 , ¶ 11 (2012) . The Board requires medical evidence to
substantiate a claim of mental incompetence . See Thieken v. Office of Personnel
Management , 56 M.S.P.R. 192 , 194, aff’d , 11 F.3d 1074 (Fed. Cir. 1993) (Table) .
8
¶13 Here, a s noted above, the appellant submitted medical evidence sho wing
that, in 2010, her husband had one of his toes amputated due to a diabetic ulcer
and later had his entire left forefoot amputated . IAF, Tab 3, Exhibit 3 at 2-8.
The records further show that, from 2010 through 2013, he suffered from type 2
diabetes, coronary artery disease, hypertension, sleep apnea, arthritis, kidney
disease, malnutrition, anemia, possible seizures, and light -headedness. Id. at 4-5,
10, 13, 16, 23, 25 . In a February 28, 2012 consultation report, the medical
provider indicated that the appellant’s husband was hospitalized due to an acute
kidney injury following a “two day history of progressive changes in mental
status with predominant agitation.” Id. at 9-10. An August 15, 2012 menta l
capacity assessment indicates , however, that he could “manage benefits in [his]
own best interest” and did not have any limitations in understanding and memory,
sustained concentration and persistence, adaptation, or social interaction. Id.
at 17-22.
¶14 The appellant also submitted a September 8, 2014 Social Security
Administration (SSA) decision finding her late husband disabled as of
November 1, 2011. IAF, Tab 3 , Exhibit 4 at 8 -15. The decision thoroughly
discussed his medical conditions and determined that his coronary artery dise ase,
end stage renal disease with dialysis, and insulin -dependent diabetes with
retinopathy and neuropathy resulting in amputation of toes on the left foot were
“severe.” Id. at 10. T he decision noted that his primary care physician
prescribed him Sertra line, which was “effective in controlling [his] anger and
mood.” Id. at 12.
¶15 In addition, as noted above, the appellant submitted a letter from her
husband’s former supervisor in which he opined that the appellant’s late husband
was becoming “mentally cha llenged ” in 2010. IAF, Tab 3, Exhibit 8. He further
indicated that he did “not think that [the appellant’s late husband] was mentally
capable of making a decision of such an important nature as properly thinking
9
through and signing his retirement paperwo rk [and that] in his ‘right mind’ he
would not have denied [the appellant] the full benefit of a spousal annuity.” Id.
¶16 Although it is clear that the appellant’s late husband suffered from a number
of serious medical conditions in the years before and af ter his retirement, the
references in the record to his mental health issues —namely, that he suffered
from a 2 -day period of “progressive changes in mental status with predominant
agitation” in 2012 and had mood and anger issues that were controlled with
medication —do not establish that he could not handle his personal affairs during
the relevant period. See Rapp , 483 F.3d at 1341. To the contrary , the August 15,
2012 mental capacity assessment specifically indicates that he could manage
benefits in h is own best interest. IAF, Tab 3, Exhibit 3 at 19. Absent any
medical evidence showing that the appellant’s late husband was mentally
incompetent when he elected a partial survivor annuity in Octo ber 2011 or at any
time during the following 18 months, the subjective opinions of the appellant and
her late husband’s former supervisor that he was mentally incompetent are
unpersuasive. See Thieken , 56 M.S.P.R. at 194. Accordingly, we find no basis to
disturb the administrative judge’s determination that the appellant’s late
husband’s survivor annuity election may not be set aside on the basis of mental
incompetence.
The appellant has not shown by preponderant evidence that her consent to her late
husband’s elec tion is invalid on the basis of fraud in the in ducement.
¶17 The appellant next argues that, if her late husband was not mentally
incompetent, then he obtained her consent to his election to a partial annuity to
receive an increased annuity during his lifetime through fraud in the inducement
by assuring he r that she would receive about half of his monthly annuity benefit
in the event of his death. PFR File, Tab 1 at 18-22. Although the appellant
invokes the term “fraud in the inducement” for the first time on review, she
asserts that she “clearly raised” this argument below when she alleged, among
other things, the following in her Board pleadings: her late husband showed her
10
the paperwork reflecting that she would receive a survivor annuity in the amount
of $2,647 per month and told her that she would re ceive approximately half of his
monthly annuity benefit as a survivor annuity; she received incorrect information
and was led “to believe that she would be taken care of with his ongoing spousal
annuity payments in the event o f his death”; she felt she was greatly misle d as to
her benefits ; and she was given “misinformation” about what she would receive
in the event of her husband’s death. Id. at 18 -20. We agree that she sufficiently
raised this argument bel ow and so we consider it on review. See Banks v .
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) ; IAF, Tabs 1, 3, 8. For
the reasons that follow, however, we find that the appellant has not shown that
her consent to her late husband’s election was invalid on the basis of fraud in the
inducement.
¶18 As stated above, the clear statutory language provides that the surviving
spouse of a CSRS annuitant is entitled to an annuity equ al to 55 percen t of his
annuity unless, at the time of his retirement, the annuitant elected to provide no
survivor annuity or a partial survivor annuity , and the spouse consented to the
election in writing. 5 U.S. C. §§ 8339 (j)(1 ), 8341 (b)(1 ); 5 C.F.R. § 831.6 14.
Thus , the relevant inquiry in determining whether the appellant met her burden of
proving her entitlement to an increased survivor annuity benefit is whether she
effected a valid waiver of her right to one when she consented in writing to her
husband’s election of a partial annuity in the amount of 55 percent of $22 per
year. See Luten v. Office of Personnel Management , 110 M.S.P.R. 667 , ¶ 10
(2009). Although a “freely made choice” concerning a survivor annuity is not
voidable on the basis of a unilateral mistake , a waiver of annuity benefits may be
set aside as invalid if it resulted from fraud. See Braza , 598 F.3d at 1320 ;
Steele v. Office of Personnel Management , 57 M.S.P.R. 458 , 464 (1993), aff’d ,
50 F.3d 21 (Fed. Cir. 1995) (Table).
¶19 “Fraud in the inducement ” is defined as “occurring when a
misrepresentation leads another to enter into a transaction with a false impression
11
of the risks, duties, or obligations involved; an intentional misrepresentation of a
materi al risk or duty reasonably relied on, thereby injuring the other party without
vitiating the contract itself.” Wofford v. Department of Justice , 115 M.S.P.R.
468, ¶ 7 (2010) (quoting Black’s Law Dictionary 671 (10th ed. 1999) ). To
establish misrepresentation, the appellant must show that a reasonable person
would have been misled by the misinformation . Armstrong v. Department of th e
Treasury , 110 M.S.P.R. 533 , ¶ 12 (2009), aff’d in part, vacated in part , 591 F.3d
1358 (Fed. Cir. 2010).
¶20 Here, even if the appellant’s late husband intentionally misled h er regarding
the effect of his election and her consent thereto , we cannot find that a reasonable
person would have been misled by the misinformation as to render her consent
invalid on the basis of fraud. The SF 2801 -2, which the appellant signed before a
notary public on September 16 , 2011, and October 7 , 2011, is clear on its face
and sufficiently informed her of the effect of consenting to her late husband’s
election to provide her a parti al annuity in the amount of 55 percent of $22 per
year.6 IAF, Tab 3, Exhibit 2 at 5, Tab 6 at 48; see Braza , 598 F.3d at 1319 -20
(holding that a prior version of SF 2801 -2 “provides sufficient notice to alert
readers to its consequences upon reasonable review and is explicit enough for the
act of signing the form to evidence agreement with the terms of the form ”).
Although the appellant was shown a printout refle cting that she would receive a
6 Specifically, the SF 2801 -2 states in the instructions section that “[i]f you are married
and you do not elec t a reduced annuity to provide a maximum survivor annuity for your
current spouse, complete Part 1.” IAF, Tab 6 at 48. The appellant’s late husband filled
out Part 1, electing the third option —“[a] partial survivor annuity for my current spouse
equal to 55% of $22.00 a year.” Id. Part 2 of the form indicates that it is to be
completed by the current spouse of the retiring employee and provides as follows: “I
freely consent to the survivor annuity election described in Part 1 . . . I also understand
that my consent is final (not revocable).” Id. Part 3 was completed by a notary public
who certified that the appellant presented identification, signed the form, and
acknowledged that her consent was freely given. Id. The general information section
of the form further provides that “[t]he law requires that a retiring, married employee
must elect to provide a survivor annuity for a current spouse unless the current spouse
consents to some other election by signing this form.” Id. (emphasis in original).
12
surviving spouse g ross monthly annuity of $2,647, the printout —labeled “an nuity
estimate as of pay period 18 of 2011” —clearly indicates it is an estimate. IAF,
Tab 1 at 11. Therefore , we find that the appellant has not shown that her consent
to her husband’s election was invalid on the basis of fraud in the inducement.
The appellant has not established any other basis to find that her consent to her
late husband’s election of a parti al survivor annuity was invalid .
¶21 The appellant also argues on review that the SF 2801 -2 was confusing and
failed to meet the notice and consent requirements of the Spouse Equity Act.
PFR File, Tab 1 at 22 -26. Although she alleged below that she did not understand
the effect of giving her consent to her late husband’s election and that it was not
sufficiently explained to her, she did not challenge the language of the form
itself. IAF, Tabs 1, 3, 8. Therefore, we need not consider this argument raised
for the first time on review. See Cerilli , 119 M.S.P.R. 404 , ¶ 11; Banks ,
4 M.S.P.R. at 271. Nonetheless, as discussed above, we find that the SF 2801 -2
sufficiently placed the appellant on notice of the consequence of giving her
consent to her husband’s election of a partial survivor annuity in the amount of
55 percent of $22 per year. IAF, Tab 6 at 48; see Braza , 598 F.3d at 1319 -20.
Moreover, we find no merit to her argument that the SF 2801 -2 falls short of any
notice and consent requirements contained in the Civil Service Retirement Spouse
Equity Act of 1984, Pub. L. No. 98 -615 § 2, 98 Stat. 3195 . That the appellant
signed the SF 2801 -2 without reading it or without understanding it, instead
relying on her late husband’s assurances, “ does not release her from the binding
effect of the waiver under controlling law ” and does not invalidate her waiver of
her entitlement to a full survivor annuity. See Braza , 598 F.3d at 1321.
¶22 The appellant further argues that her late husband’s severe health issues and
the likelihood that his death “would occur relatively quickly” demonstrate “the
absolute absurdity of a knowing consent to a survivor annuity of $1.00 per
month.” PFR File, Tab 1 at 21. Although we sympathize with the appellant’s
situation, neither the Board, nor OPM, may grant retirement benefits on the basis
13
of equitable considerations when granting s uch benefits is not otherwise
permitted by law . See Office of Personnel Management v. Richmond ,
496 U.S. 414, 416 ( 1990) ; Hamilton v. Office of Personnel Management ,
69 M.S.P.R. 690 , 694 (1996) . Therefore, we find no basis to disturb the
administrative judge’s determination that OPM’s reconsider ation decision must
be affirmed.
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule r egarding which cases fall within their
jurisdiction. If you wish to seek 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 t he applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
14
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
15
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at thei r respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal E mployment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Ope rations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, th en you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employm ent Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Oppo rtunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
16
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing d isclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, 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 th e date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “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 or iginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perm anently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circu it Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
If you are interested in securing pro bono representation for a n appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board n either endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | HERRINGDINE_ANN_M_AT_0831_17_0179_I_1_FINAL_ORDER_1995951.pdf | 2023-01-24 | null | AT-0831 | NP |
3,731 | https://www.mspb.gov/decisions/nonprecedential/YOUNG_CASSANDRA_DA_0841_17_0377_I_1_FINAL_ORDER_1995957.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASSANDRA YOUNG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0841 -17-0377 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cassandra Young , Dallas, Texas, pro se.
Jo Bell , 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 decisio n, which
affirmed a June 8, 2017 reconsideration decision issued by the Office of
Personnel Management denying her request for a deferred annuity under the
Federal Emp loyees’ Retirement System . On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
submits a number of unrelated documents , but she does not provide any argument
or evidence on which to disturb the initial decision . Petition for Review (PFR)
File, Tabs 1-2.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains err oneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the app eal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’ s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in th is 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 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
2 The appellant also filed a request to withdraw her petition for review but then filed a
subsequent pleading indicating that she wished to “retract [the] withdrawal request.”
PFR File, Tabs 5 -6. A s such, the Board will not rule on the appellant’s request to
withdraw and instead issues this decision on the appellant’s petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rig hts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
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 A ppeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
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 unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S . district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appea ls of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisa l cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YOUNG_CASSANDRA_DA_0841_17_0377_I_1_FINAL_ORDER_1995957.pdf | 2023-01-24 | null | DA-0841 | NP |
3,732 | https://www.mspb.gov/decisions/nonprecedential/HULST_ROBERT_G_SF_0752_17_0215_I_1_REMAND_ORDER_1995963.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT G. HULST,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
SF-0752 -17-0215 -I-1
DATE: January 24, 2023
THIS ORDER IS NONPRECEDENTIAL1
John Rodriguez , San Diego, California, for the appellant.
Justin Strong , Los Angeles Air Force Base , California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMA ND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed . For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the Western
Regional O ffice for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The a ppellant has been a GS -9 Machinist with the Department of the Air
Force since 2016. Initial Appeal File (I AF), Tab 1 at 7 . On June 22, 2016, the
appellant received a notice of proposed removal for falsif ying questionnaire
responses during the hiring process, which was later amended on August 17,
2016. Id. at 7, 9. On October 17, 2016, the appellant received notice of the
agency’s decision to remove him from the posit ion, with an effective date of
October 18, 2016. Id. at 11. This notice included the appellant’s appeal rights
and deadline for fili ng such an appeal to the Board . Id. The appellant’s
representative filed an appeal with the Board on January 19, 2017. Id. at 18.
¶3 The administrative judge advised the appellant that appeals not filed within
the time period required by the Board’s regulations may be dismissed as untimely
without addressing the und erlying merits of the case. IAF , Tab 2 at 2. The
administr ative judge indicated that the filing period began on October 18, 2016 ,
but that the appeal was filed by regular mail on January 19, 2017, well after the
30-day filing deadline. Id. The administrative judge ordered the appellant to file
evidence and/or a rgument that the appeal was filed on time or that good cause
exists for the delay in filing. Id. at 3.
¶4 The a ppellant responded and indicated that his union representative sent the
appeal to the Board via certified mail on November 8 or 9, 2016 , but that the
receipt had been misplaced. IAF, Tab 4 at 1. He further asserted that, upon
calling the Board and discovering it had not received the appeal, the union
representative re -filed the appeal on January 19, 2017. Id. The a ppellant also
provided cer tified mail receipts dated November 8, 2016 , to demonstrate that
copies of the appeal were mailed to the agency, as i t requested, and to the
appellant. Id. at 3. The agency filed a motion and urged that the appeal be
dismissed as untimely . IAF, Tab 11.
¶5 Without holding a hearing, t he administrative judge dismissed the appeal as
untimely filed without good cause shown for the delay. IAF, Tab 12, Initial
3
Decision (ID). Specifically, the administrative judge found that the appellant’s
representative faile d to mail the app eal to the Board in November 2016, and that
the appellant, through his representative, demonstrated a lack of due diligence by
not obtaining a postal receipt and by allowing 2 months to pass after the filing
deadline before contacting the Board to question receipt of the appeal . ID at 5-7.
The appellant filed a petitio n for review and the agency filed a response in
opposition to the appellant’s petition. Petition for Review (PFR ) File, Tabs 1, 3.2
In his petition for review, the appella nt reasserts his argument that his union
representative mailed his appeal on November 8 or 9 of 2016. PFR File, Tab 1
at 2-3. He further states that he was being proactive by following up with the
Board in January of 2017 when he was told it had not received his appeal. Id.
at 2.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 An appeal must be filed with the Board within 30 days of the effective date
of an appealable agency action, or 30 days after the individual receives notice of
the agency’s decision, whichever is later. 5 C.F.R. § 1201.22 (b). The Board will
dismiss an appeal that is filed untimely unless the appellant shows good cause for
the delay. 5 C.F.R. § 1201.22 (c). The agency’s October 17, 2016 decision letter
informed the appellant that he had 30 days after the October 18, 2016 effective
date of the removal or 30 days after the date he received the agency ’s decision
letter, whichever was later, to file his appeal. IAF, Tab 1 at 11. The appellant
received the decision letter on October 17, 2016. Id. at 2. Consequently, the
deadline for filing this appeal was November 17, 2016. See 5 C.F.R.
§ 1201.22 (b).
2 Although the appellant’s petition for review appeared to lack a signature , as required
by 5 C.F.R. § 1201.114 (c), the Office of the Clerk of the Board did not reject the
petition , and we therefore take no further action regarding this issue . PFR, Tab 1.
4
¶7 If the appellant’s January 19, 20 17 appeal was the only appeal, it was
untimely filed by 63 days. IAF, Tab 1 at 18. However, the appellant alleged , in
both his response s to the admin istrative judge and his petition for review , that his
union representative file d his appeal on November 8 or 9, 2016 . IAF, Tab 1; PFR
File, Tab 1. In support of th at claim, the appellant provided a signed statement
from his union representative that the appeal was timely filed on November 8
or 9, 2016 and was sent by certified mail to the Board’s Western Regional
Office ’s address at 201 Mission Street, Suite 2310, San Francisco, CA,
94105 -1831.3 IAF, Tab 1 at 15-16. The appellant also provided certified mail
receipts dated November 8, 2016 , allegedly documenting that copies of the appeal
were also mailed to the agency , as it requested, and the appellant. IAF, Tab 1
at 17. In response to the administrative judge’s order regarding timeliness, the
appellant also submitted his own unsworn statement reiterating when and how the
appeal was filed i n November 2016 and provided the same certified mail receipts.
IAF, Tab 4. The agency has not rebutted t he appellant’s argu ment that his
representative sent a copy of the initial appeal to the agency nor shown that it
would be prejudiced if the appeal w ere granted . IAF, Tab 11; PFR File , Tab 3.
¶8 When an appellant presents facially credible evidence sufficient to establish
a dispute as to material facts regarding the timely filing of his appeal or good
cause excusing his late filing , the administrative judge must hold a hearing to
resolve the factual dispute. Stout v. Merit Systems Protection Board ,
389 F.3d 1233 , 1241 (Fed. Cir. 2004) ; Nelson v. U.S. Postal Service ,
88 M.S.P.R. 331, ¶ 5 (2001) . The Board has held that evidence that a pleading
was sealed, properly addressed to the Board with postage prepaid, and placed in
the U.S. Postal Service mail stream gives rise to a presumption that it was filed
on the date it was placed in the U.S. Postal Service mail stream, regardless of
whether the Board receives it. Gaydon v. U.S. Postal Service , 62 M.S.P.R. 198 ,
3 This was the correct address for the Board’s San Francisco Regional Office at the
time. In the fall of 2017, the regional o ffice moved to Oakland, California.
5
202, review dismissed , 36 F.3d 1113 (Fed . Cir. 1994) (Table). Direct evidence is
required to invoke the presum ption of delivery and receipt , which may be in the
form of a document or testimony. Foust v. Department of the Treasury ,
80 M.S.P.R . 477 , ¶ 5 (1998), review dismissed , 194 F.3d 1332 (Fed. Cir. 1999)
(Table). The party invoking the presumption must present specific details
concerning the mailing, such as the time of day and place of the mailing . Freeze
v. Department of Veterans Affai rs, 65 M.S.P.R. 149 , 152 (1994).
¶9 In this case, t he question of whether the appellant ’s representative filed an
appeal on November 8 or 9, 2016, is a factual matter in dispute. The appellant
asserts, with more than a bare allegation, that he did. The documentary evidence
submitted thus far establishes the existence of a genuine factual dispute and
support s the appellant’ s assertion that he timely filed his appeal. See Hutchi son
v. Merit Systems Protection Board , 91 F.3d 1458 , 1460 -61 (Fed. Cir. 1996) ; see
also Scott v. Department of Justice , 69 M.S.P.R. 211 , 228 (1995) (holding that
while an unsworn statement by an appellant is admissible e vidence, the fact that it
is unsworn may detract from its probative value) , aff’d , 99 F.3d 1160 (Fed. Cir.
1996) (Table) ; Hendricks v. Department of the Navy , 69 M.S.P.R. 163 , 168
(1995) (finding that while statements of a party’s representative in a plead ing do
not constitute evidence , unchallenged assertions of the party’s representations
may constitute nonfrivolous allegations raising factual questions).
¶10 Here, the appellant raised a factual issue an d requested a hearing. IAF
Tab 1 at 1. Thus, we find it necessary to remand thi s matter to the regional office
with the instructi on that an evidentiary hearing be held on the timeliness issue.
On remand, the appellant may present evidence and argument to show that the
November 8, 2016 receipt he provided reflects a mistaken filing of t he petition
for appeal with the agency, and if it does, he must present evidence and argument
to show that he filed the petition with the Board as soon as he learned of the
mista ke. See Sanford v. Department of Defense , 61 M.S.P.R. 207 , 210 (1994) .
The appellant also may present evidence and argument to support his assertion
6
that he filed his petition for appeal with both the agency and the B oard on
November 8 or 9, 2016. If the administrative judge finds that the appellant timely
filed his appeal, or that good cause exists to waive the filing time limit, the case
should proceed on its merits. If, however, the administrative judge finds, aft er
reviewing the evidentiary and testimonial evidence, that the appellant failed to
timely file his appeal or failed to demonstrate that good cause exists to waive the
filing deadline, then the administrative judge may dismiss the appeal as untimely
filed.
ORDER
¶11 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
Jennif er Everling
Acting Clerk of the Board | HULST_ROBERT_G_SF_0752_17_0215_I_1_REMAND_ORDER_1995963.pdf | 2023-01-24 | null | SF-0752 | NP |
3,733 | https://www.mspb.gov/decisions/nonprecedential/SCALES_LONNIE_R_AT_0752_17_0101_I_1_FINAL_ORDER_1995998.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LONNIE R. SCALES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -17-0101 -I-1
DATE: January 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric F. Adams , Esquire, Huntsville, Alabama, for the appellant.
Melissa A. Romig , Dallas, 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
dismissed his constructive removal appeal for lack of jurisdiction . On petition for
review, the appellant argues that he established Board jurisdiction over his appeal
by showing that he was left with no choice but to retire . Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpret ation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an a buse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federa l Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 12 01.115 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 t he 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 o n 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 w hich option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, w ww.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Boar d 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 cla imed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, exclu ding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represen tative 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 submi t a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 App eals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 | SCALES_LONNIE_R_AT_0752_17_0101_I_1_FINAL_ORDER_1995998.pdf | 2023-01-24 | null | AT-0752 | NP |
3,734 | https://www.mspb.gov/decisions/nonprecedential/PARKER_WILLIE_TYRONE_SYVALUS_DC_0752_17_0064_I_1_FINAL_ORDER_1996056.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIE TYRONE -SYVALUS
PARKER,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -17-0064 -I-1
DATE: January 24, 202 3
THIS FINAL ORDER IS NONPRECEDENTIAL1
Willie Tyrone -Syvalus Parker , Portsmouth, Virginia, pro se.
Courtney Hatcher , Esquire, Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Memb er
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for failure to meet a condition of employment. On petition
for review, the appellant argues that the administrative judge erred in sustaining
the penalty based on several mitigating factors. 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
interpr etation 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 Fede ral Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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 Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | PARKER_WILLIE_TYRONE_SYVALUS_DC_0752_17_0064_I_1_FINAL_ORDER_1996056.pdf | Date not found | null | DC-0752 | NP |
3,735 | https://www.mspb.gov/decisions/nonprecedential/SANFORD_GLORIA_J_DE_3443_17_0175_I_1_FINAL_ORDER_1995382.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GLORIA J. SANFORD,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-3443 -17-0175 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria J. Sanford , Littleton, Colorado, pro se.
Nanette Gonzales , Esquire, Lakewood, Colorado, 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 her nonselection appeal 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 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).
¶2 In October 2016, the agency posted a vacancy announcement for a GS -14
Supervisory Accountant. Initial Appeal File (IAF), Tab 11 at 153 -62. To be
qualified, an applicant was required to “possess one year of specialized
experience equivalent to at least th e GS -13 level.” Id. at 154. Additionally,
applicants were also required to meet a basic education requirement in one of two
ways. Id. Under “Method 1” an applicant could meet the education qualification
through a “[d]egree in accounting or a degree in a related field . . . that included
or was supplemented by 24 semester hours in accounting.” Id. at 154.
¶3 More relevant to the instant appeal, under “Method 2,” an applicant could
meet the education qualification through “at least 4 years of experience i n
accounting, or an equivalent combination of accounting experience, college -level
education, and training that provided professional accounting knowledge.” Id.
Under Method 2, an applicant’s background also had to include
either (1) “[24] semester hours in accounting or auditing courses of appropriate
type and quality,” (2) “[a] certificate as Certified Public Accountant or a Certified
Internal Auditor,” or (3) :
3
Completion of the requirements for a degree that included substantial
course work in account ing or auditing, e.g., 15 semester hours, but
that does not fully satisfy the [aforementioned] 24 -semester -hour
requirement, provided that (a) the applicant has successfully worked
at the full -performance level in accounting, auditing, or a related
field, e.g., valuation engineering or financial institution examining;
(b) a panel of at least two higher level professional accountants or
auditors has determined that the applicant has demonstrated a good
knowledge of accounting and of related and underlying fi elds that
equals in breadth, depth, currency, and level of advancement that
which is normally associated with successful completion of the
4-year course of study [previously] described; and (c) except for
literal nonconfo rmance to the requirement of 24 semester hours in
accounting, the applicant’s education, training, and experience fully
meet the specified requirements.
Id. at 154, 156.
¶4 The appellant applied for the Supervisory Accountant vacancy, indicating
that she met the education qualification thr ough Method 2. IAF, Tab 11 at 148.
The appellant indicated that, o f the three ways in which such an applicant could
satisfy the added background requirement, she satisfied the third. Id. In other
words, using the labels from above, the appellant indica ted that her background
included the following: 4 years of experience in acc ounting or a related field,
(3) completion of substantial course work t hat did not total 24 hours,
(a) successful work at the full performance level, (b) approval from an
appropri ate panel of higher level professionals, and (c) education, training, and
experience that met specified requirements. Id.
¶5 After reviewing the appellant’s applicat ion, the agency concluded that s he
was not qualified for the vacancy. E.g., id. at 35 -38, 52. Specifically, the agency
determined that the appellant did not satisfy requirement (a) because although she
had experience as a GS -13, she had not worked at the full performance level of
the vacancy at issue, GS -14. E.g., id. at 52. The agency also concluded that the
appellant did not satisfy requirement (c) because she lacked the necessary
specialized experience. Id.
4
¶6 The appellant filed the instant Board appeal, alleging that she is qualified
for the Supervisory Accountant vacancy. IAF, Tab 1 at 5. She again point ed to
her pr ior GS -13 experience and alleged that she met the qualifications through
Method 2, described above. IAF, Tab 10 at 4 -6. The administrative judge
responded to the appeal by issuing an order that explained the limited
circums tances in which the Bo ard has jurisdiction over a non selection and
instructing the appellant to meet her jurisdictional burden. IAF, Tab 2 at 2 -6.
After both parties responded to the order , the administrative judge issued an
initial decision that dismiss ed the appeal for lack of jurisdiction. IAF, Tab 18,
Initial Decision (ID). He found that the appellant failed to prove or even
nonfrivolously allege that the Board has jurisdiction over this appeal. ID at 2 -4.
¶7 The appellant has filed a petition for rev iew. Petition for Review (PFR)
File, Tab 1. The agency has filed a response and the appellant has replied. PFR
File, Tabs 11 -12.
¶8 On review, the appellant summarily asserts that “[t]here is no requirement
that an obstruction of Justice must go before the Office of Special Counsel prior
to the [Board]. This as I stated [below] was an obstruction of justice.” PFR File,
Tab 1 at 4. The appellant also alleges that the administrative judge was biased,
and she requests that a new administrative judge be assi gned to her appeal. PFR
File, Tab 1 at 4, Tab 12 at 4 -5. We are not persuaded.
¶9 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule , or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The Board does not have
direct jurisdiction over an employee’s nonselection for a vacant position. E.g.,
Gryder v. Depar tment of Transportation , 100 M.S.P.R. 564 , ¶ 9 (2005).
However, there are some limited circumstances in which an appellant may
otherwise establish jurisdiction in an appeal involving her nonselection. For
example, an appellant may ch allenge her nonselection in the context of an
individual right of action (IRA) appeal. Id.; see Linder v. Department of Justice ,
5
122 M.S.P.R. 14 , ¶ 6 (2014) (recognizing that the Board has jurisdiction over an
IRA appeal if an appellant exhausts her administrative remedies before the Office
of Special Counsel and makes nonfrivolous allegations that (1) she made a
protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
prote cted 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)).
¶10 The administrative judge recognized the limited circumstances in which an
appellant may establish the Board’s jurisdiction over her non selection. IAF,
Tab 2 at 2 -6. Among ot her things, he noted the aforementioned exception, where
the Board may have jurisdiction over a nonselection if an appellant alleges
improper retaliation covered by 5 U.S.C. § 2302 (b). Id. at 5 -6. The
administrative judge indicated that, if the appellant responded by indicating that
she wished to pursue any such claim, he would provide additional notice to
further explain her burden. Id. at 6.
¶11 In her timely response, the appellant presented ext ensive argument and
evidence concerning her qualifications, but no arguments implicating any of the
avenues for Board jurisdiction recognized by the administrative judge.2 IAF,
2 We recognize that the record does include indications that the appellant is entitled to
veterans ’ preference. IAF, Tab 1 at 1. However, none of her allegations appear to
implicate the Veterans Em ployment Opportunities Act of 1998 (VEOA). See generally
Piirainen v. Department of the Army , 122 M.S.P.R. 194, ¶ 8 (2015) (recognizing the
two types of VEOA claims over which the Board has jurisdictio n—claims involving an
improper denial of a right to compete and claims involving a violation of a statute or
regulation relating to veterans’ preference); Miller v. Federal Depos it Insurance
Corporation , 121 M.S.P.R. 88 , ¶¶ 15 -18 (2014) (recognizing that 38 U .S.C. § 4214
exempts preference eligibles from minimum education requirements in some limited
circumstances, but never in the case of a GS -14 level position) , aff’d , 818 F.3d 1361
(Fed. Cir. 2016 ); Ramsey v. Office of Personnel Management , 87 M.S.P.R. 98 , ¶ 9
(2000) (recognizing that nothing in VEOA exempts covered veterans from meeting
minimum qualification standards of vacant positions). The appellant’s allegations also
contain nothing that could be reasonably construed as a Uniformed Services
6
Tab 10. Later, in an untimely submission, the appellant invoked
sections 2302 (b)(1) -(13), but she presented no corresponding allegations. IAF,
Tab 15 at 4 -6. She simply stated that “Under 5 U.S.C. § 2302 (b)(1) -(b)(13) an
Agency may not deceive or willingly obstruct any pe rson from competing for
employment.” Id. at 4, 6. The administrative judge found that this late argument
did not change the outcome. ID at 3. Among other things, he correctly noted that
prohibited personnel practices are not directly appealable to the Board. Id.; see
Penna v. U.S. Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012). To the extent that
the appellant’s petition for review suggests otherwise, we are not persuaded.
¶12 The appellant’s argument throughout this appeal has been that the agency
erred in finding that she did not meet the minimum requirements of the
Supervisory Accountant vacancy. IAF, Tab 1 at 5, Tab 8 at 4 -5, Tab 10 at 4 -7,
Tab 12 at 4 -6. Her mere citation to sections 2302(b)(1) -(13) during one of her
iterations of that same argument, in a context unrelated to the protections
afforded by section 2302(b), is unavailing. See IAF, Tab 15 at 4 -6. It did not
establi sh jurisdiction or even amount to a nonfrivolous allegation. See 5 C.F.R.
§ 1201.4 (s) (defining a nonfrivolous allegation as “an assertion that, if proven,
could establish the matter at issue” and recognizing that “[a]n allegation generally
will be considered nonfrivolous when, under oath or penalty of perjury, an
individual makes an allegation that is more than c onclusory; is plausible on its
face; and is material to the legal issues in the appeal”). Moreover, the appellant’s
allegations did not trigger the administrative judge’s offer to provide further
information about her burden upon indication that she inten ded to pursue one of
Employme nt and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) (USERRA) claim. See generally Clavin v. U.S. Postal Service ,
99 M.S.P.R. 619 , ¶ 5 (2005) (recognizing t he two types of USERRA claims over which
the Board has jurisdictio n—claims involving an agency’s failure to meet its
reemployment obligatio ns following an employee’s absence due to uniformed service
and claims of discrimination involving uniformed service). If the appellant meant to
challenge the nonselection as a claim under VEOA or USERRA, she may file a separate
appeal on that basis. We make no finding as to whether the VEOA appeal would be
deemed timely.
7
the specific exceptions where the Board may have jurisdiction over her
nonselection. IAF, Tab 2 at 6. Therefore, we discern no error in the
administrative judge’s dismissal for lack of jurisdiction.
¶13 Although we have considered the a ppellant’s allegations of bias and
improper conduct by the administrative judge, PFR File, Tab 1 at 4, Tab 12
at 4-5, we find that they generally reflect a misunderstanding of the Board’s
jurisdictional limitations and adjudicatory processes. They do not overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. See Oliver v. Department of Transportation , 1 M.S.P. R. 382 , 386
(1980).
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 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 carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board ca nnot advise which option is most appropriate in any matter.
8
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board 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
9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this cas e, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, co lor, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this ca se,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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) ot her than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
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 Circui t 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 othe r circuit court 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SANFORD_GLORIA_J_DE_3443_17_0175_I_1_FINAL_ORDER_1995382.pdf | 2023-01-23 | null | DE-3443 | NP |
3,736 | https://www.mspb.gov/decisions/nonprecedential/LITTLE_JOHN_M_DA_0752_16_0124_C_1_FINAL_ORDER_1995410.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN M. LITTLE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -16-0124 -C-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kalandra N. Wheeler , Esquire, Dallas, Texas, for the appellant.
Nadine Scott , Esquire, Seattle, Washington, 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 petition for enforcement for lack of jurisdiction. On petition for
review, the appellant argues that the agency breached the terms of a
March 2, 2016 settlement agreement , which specifically provided that it was not
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
enforceable by the Board . Generally , we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initia l decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consist ent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner h as not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 th e time limit for seeking such
review and the 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 Protec tion Board does not 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 r eview 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 c hosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should c ontact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circui t is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intereste d in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellan ts before the 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 op tion applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 cou rt no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000 e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EE OC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no la ter than 30 calendar days after your representative 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 petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law 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.
Contact information for the 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 | LITTLE_JOHN_M_DA_0752_16_0124_C_1_FINAL_ORDER_1995410.pdf | 2023-01-23 | null | DA-0752 | NP |
3,737 | https://www.mspb.gov/decisions/nonprecedential/ROBINSON_WILLIE_MAE_AT_0432_10_0558_I_1_FINAL_ORDER_1995428.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIE MAE ROBINSON,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0432 -10-0558 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Willie Mae Robinson , Canton, Mississippi, pro se.
Aryeh Rosenfield , Esquire, Atlanta, 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
dismissed the appeal of her March 5, 2010 removal as settled. For the reasons set
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cau se shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 was employed as an Internal Revenue Agent, GS -11, with the
agency’s Internal Revenue Service. Initial Appeal File (IAF) , Tab 5 at 14 . On
February 5, 2009, the appellant’s first -line supervisor placed the appellant on a
60-day performance improvement plan (PIP) , during which time she was to
complete specific tasks to demonstrate at least a minimally successful level of
performance . Id. at 68 -78. On October 14, 2009, the appellant’s manager
notified the appellant that she failed to perform as required on the PIP, and she
proposed the appellant’s removal for unacceptable performance . Id. at 39-49.
After the appellant resp onded to the proposal, the deciding official issued a
decision removing her effective March 5, 2010. Id. at 17 -19.
¶3 The appellant filed this appeal of her removal. IAF, Tab 1 at 3-4, 28 . She
also filed a motion to compel the agency’s responses to some of her written
discovery requests, including interrogatories 23 and 24, in which she sought
information related to her performance leading up to the agency’s decision to
place her on a PIP. IAF, Tab 12 at 3-4. T he administrative judge denied the
appellant’s motion as to these interrogatories, reasoning that “[t]he issue of
whether the appellant should have been placed on a PIP [was] not relevant” to the
appeal. IAF, Tab 15 at 1. The admini strative judge reiterated during a
subsequent telephonic status conference , and in her order summarizing the
conference, that the appellant’s performance at times other than while on the PIP
“generally, is not material or relevant” to her removal under cha pter 43 . IAF,
Tab 21 at 2.
¶4 On September 23, 2010, the appellant, her attorney , and the agency’s
representative appeared for a hearing. IAF, Tab 38 , Hearing Compact Disc
(HCD), Tab 40, Initial Decision (ID) . Before the hearing could begin, the parties
reached an oral agreement. HCD; ID at 1. The recording of the September 23,
3
2010 hearing reveals that the administrative judge indicated she would dismiss
the appeal as settled after she received the written settlement agreement. HCD.
¶5 On October 8, 20 10, the parties entered into a signed, written settlement
agreement, in which the appellant agreed to withdraw her appeal with prejudice .
IAF, Tab 39 at 3. The administrative judge issued an initial decision dismissing
the appeal as settled and entering the settlement agreement into the record for
enforcement purposes. ID. The initial decision stated that it would become final
on November 18, 2010, unless a petition for review was filed by that date. ID
at 2. The initial decision was sent to the appellant by U.S. mail and to her
attorney by electronic mail, on October 14, 2010. IAF, Tab 41. Neither party
filed a petition for review before the finality date.
¶6 On December 21, 2021, t he appellant mail ed the instant petition for review
to the Board.2 Petition for Review (PFR) File, Tab 1 at 16 . The Acting Clerk of
the Board advised the appellant that her petition for review appeared to be
untimely . PFR File, Tab 2 at 1-2. She informed the appellant that she could file
a motion to accept her petition as timely filed or to waive the time limit. Id.
at 1-2, 7-8. The appellant has filed a responsive motion. PFR File, Tab 3. After
the deadline set by the Acting Clerk, t he agency responded to the petition fo r
review.3 PFR File, Tab 5.
2 Although the appellant was represented by an attorney below , she ha s indicated on
review that she is representing herself. P etition for Review (PFR) File, Tab 3 at 1.
3 The agency has moved for acceptance of its response as timely and for waiver of the
time limit for good cause. PFR File, Tab 7. We find it unnecessary to rule on the
agency’s motion because, regardless of its response, we agree that the appella nt’s
petition for review was untimely filed without good cause.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The petition for review was untimely filed.
¶7 A petition for review must be filed within 35 days of the issuance of the
initial decision or, if the appellant shows that the initial decision was r eceived
more than 5 days after the date of issuance, within 30 days after the date she
received the initial decision. 5 C.F.R. § 1201.114 (e). Here, the initial decision
was issued on October 14, 2010, and in the absence of a timely petition for
review, it became final on November 18, 2010. IAF, Tab 40. According to the
postmark on the envelope in which the appellant mailed her petition for review,
she filed it on December 12, 2021 . PFR File, Tab 1 at 16; see 5 C.F.R.
§ 1201.4 (l) (providing that the date of filing by mail is determined by the
postmark date). Thus, the pe tition for review was filed over 11 years late.
¶8 On review , the appellant alleges that neither she nor her former attorney
was provided with a copy of the initial decision. PFR File, Tab 1 at 1, Tab 3
at 4-5. She maintains that she contacted the Board and other entities multiple
times for over a decade requesting a copy of her file and a hearing concerning her
removal. PFR File, Tab 3 at 4. She asserts the Board denied her requests. PFR
File, Tab 1 at 1. She states that in 2 021, the Board finally gave her electronic
access to the file on her appeal . Id.
¶9 Documents served electronically are deemed to have been received on the
day of electronic submission. 5 C.F.R. § 1201.14 (m)(2). The appellant submitted
a sworn statement on review that her attorney was not “provided” with a copy of
the initial decision. PFR File, Tab 3 at 3 -4. However, the certificate of service
for the decision shows the appellant’s re presentative at the time, who was an
attorney, was served electronically on October 14, 2010. IAF, Tab 6 at 1,
Tabs 26, 41. Therefore, as an electronic filer, he is deemed to have received the
initial decision on October 14, 2010 , whether he did so or no t. See, e.g. , Morton
v. Department of Veterans Affairs , 113 M.S.P.R. 365 , ¶¶ 6 -7 (2010); Lima v.
5
Department of the Air Force , 101 M.S.P.R. 64 , ¶ 5 (2006). Even assuming, as the
appellant asserts on review, her attorney was not “provided” with the initial
decision, he was responsible for monitoring case activity in the Board’s e -Appeal
Online system, and he is deemed to have received the decision when it was
issued. Maloney v. Executive Office of the President , 2022 MSPB 26 , ¶ 37 n.12.
Likewise, the appellant would be deemed to have received the initial decision the
same day, as service on a party’s designated representative is imputed to th e
party. Lima , 101 M.S.P.R. 64 , ¶ 5. Therefore, the Board may infer that both the
appellant and her former attorney received the initial decision on October 14,
2010 , and her petition for review was untimely filed by over 11 years .
The appellant did not provide good cause for the delay in filing the petition for
review .
¶10 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. Rivera v. Social Security
Administration , 111 M.S.P.R. 581 , ¶ 7 (2009); 5 C.F.R. §§ 1201.113 (d),
1201.114( g). To establish good cause for an untimely filing , a party must show
that she exercised due diligence or ordinary prudence under the particul ar
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 her excuse and
her showing of due diligence, whether she is proceeding pro se, and whether she
has presented evidence of the existe nce of circumstances beyond her control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly shows a causal relationship to her inability to timely file
her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). The Board should consider the
“‘length of the delay ’ in every good cause determination .” Walls v. Merit
Systems Protection Board , 29 F.3d 1578 , 1582 (Fed. Cir. 1994).
6
¶11 The appellant has no t demonstrated good cause for the delay in filing her
petition for review. Importantly, her 11-year delay is far from minimal. See
Allen v. Office of Personnel Management , 97 M.S.P.R. 665 , ¶ 8 (2004) (finding a
14-day delay in filing a petition for review not minimal). Moreover, the appellant
was represent ed by counsel. In fact, her attorney wrote a letter on her behalf to a
U.S. Representative on October 20, 2010, shortly after the initial decision was
issued. PFR File, Tab 1 at 3 -4.
¶12 The appellant indicated she filed her petition for review after the B oard
gave her electronic access to her file because she realized upon receiving the
initial decision that the agreement was the result of fraud .4 PFR File, Tab 1
at 1-2. The appellant appears to argue that the administrative judge induced her
into settli ng her appeal by advising her that she could not challenge the agency’s
decision to place her in a PIP. Id. Newly discovered evidence that a settlement
agreement is invalid for reasons such as fraud , coercion, or mutual mistake can
establish good cause for an untimely petition for review, and in such cases the
question of good cause and the underlying issue of the validity of the settlement
agreement largely overlap . Linares -Rosado v. U.S. Postal Se rvice , 112 M.S.P.R.
599, ¶¶ 7 -8 (20 09). However, the administrative judge did not engage in fraud
4 The appellant also alleges that the Board engaged in fraud when it responded to an
inquiry from a U.S. Senator regarding her appeal. PFR File, Tab 1 at 1. The appellant
provided a n Apri l 2021 letter from the Senator to the appellant, to which the Senator
attached the initial decision from a prior appeal filed by the appellant, Robinson v.
Department of the Treasury , MSPB Docket No. AT -3443 -04-0102 -I-1, Initial Decision
(Jan. 29, 2004). PFR File, Tab 1 at 1 , 10-15. The appellant alleges that the Board
engaged in fraud because she had inquired with the Senator regarding the instant
appeal . Id. at 1. We decline to find that the Board’s alleged actions were intentional or
that they present circumstances beyond the appellant’s control that might excuse her
failure to timely file her petition for review in the instant appeal. See Odoh v. Office of
Person nel Management , 2022 MSPB 5 , ¶¶ 6, 9 (finding in a suitability action that a
charge of material, intentional false statement, or de ception or fraud in examination or
appointment required the Office of Personnel Management to prove that the appellant
knowingly provided wrong information with the intention of defrauding, deceiving, or
misleading his employing agency).
7
when correctly advising th e appellant regarding the state of the law then
applicable to chapter 43 appeals.
¶13 With her petition for review, the appellant attached her former attorney’s
October 20, 2010 letter, in which he argued that the only issue he would have
been allowed to prese nt to the Board was “whether or not [ the appellant ]
successfully performed during the PIP. ” PFR File, Tab 1 at 3-4. He asserts he
should have been able, but would not have been allowed, to show that the agency
violated its own policies when it placed the appellant on a PIP despite her fully
successful performance rating . Id. This letter makes clear that the inability to
present these claims was his reasoning for advising the appellant to settle with the
agency. Id. at 3. The attorney’s recitation of h is understanding of the law
applicable to chapter 43 removal cases was correct at the time the October 14,
2010 decision was issued. See Lee v. Department of Veterans Affairs , 2022
MSPB 11 , ¶¶ 13 -14. The record confirms that the administrative judge provided
this information both in denying the appellant’s motion to compel and in
identifying the issues for the hearing. IAF, Tab 15 at 1, Tab 21 at 2. However,
because it was an accurate representation of the case law at the time, it was not
misleading . Brown v. Department of the Navy , 71 M.S.P.R. 451 , 454 (1996)
(explaining that a correct statement by an administrative judge as to the scope of
the Board’s review did not constitute misleading information) .
¶14 In a few cases, the Board has cited inte rvening legal precedent as good
cause for an untimely filed petition for review. McClenning v. Department of the
Army , 2022 MS PB 3 , ¶ 12. In March 2021, over 10 years a fter the administrative
judge issued her initial decision in the instant appeal, the U.S. Court of Appeals
for the Federal Circuit issued its decision in Santos v. National Aeronautics &
Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). In Santos , 990 F.3d
at 1360 -61, 1363 , the court held that, in addition to the other elements of an
agency’s burden of proof under chapter 43, the agency also must justify the
8
institution of a PIP by proving by substantial evidence that the employee’s
performance was unacceptable prior to the PIP.
¶15 Although the appellant did not cite to the Santos decision in her petition for
review , we have considered here whether the Santos decision has change d the law
in a manner that could have impacted the adjudication of her case. Santos
constitute s a ch ange in law that could materially affect the appellant’s removal
appeal. However, although that decision may otherwise satisfy the “unusual
circumstances” standard, the appellant fails to demonstrate that she exercised due
diligence regarding her case , and therefore we are not motivated to reopen her
appeal. Alonzo , 4 M.S.P.R. at 184. Overall, the 1 1-year time period that elapsed
between the Board’s initial decision and the date of the appellant’s petition for
review is more than the Board is generally inclined to accept. Special Counsel v.
Greiner , 119 M.S.P.R. 492 , 495 (2013) (denying a request to reopen an appeal
15 months after the Board issued its decision) .
¶16 Additionally, the fact that the appellant settled her case, rather than litigated
it, provides a very strong reason not to reopen this case. Generally, an
employee’s withdrawal of an appeal is an act of finality that removes the appeal
from the Board’s jurisdiction, and the Board will not reinstate an appeal once it
has been withdrawn in the absence of unusual circumstances such as
misinformation or new and material evidence. Brown , 71 M.S.P.R. at 453-54. In
settling her appeal, the appellant agreed to “withdraw[] with prejudice . . . the
appeal to the . . . Board . IAF, Tab 39 at 3 . Further, public policy favors
settlements. Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 12 -13,
17 (2017) .
¶17 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal.
9
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
11
to waiver of any requirement of prepayment of fees, costs , or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
12
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 peti tion for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addition al information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardin g pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact infor mation for the courts of appeals can be 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 | ROBINSON_WILLIE_MAE_AT_0432_10_0558_I_1_FINAL_ORDER_1995428.pdf | 2023-01-23 | null | AT-0432 | NP |
3,738 | https://www.mspb.gov/decisions/nonprecedential/BROWN_DAMON_V_SF_0752_17_0611_I_1_FINAL_ORDER_1995430.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMON V. BROWN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -17-0611 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damon V. Brown , Inglewood, California, pro se.
Catherine V. Meek , Esquire, Long Beach, 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 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
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
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. Except as expressly
MODIFIED to dismiss this appeal for lack of jurisdiction based on a settlement
agreement between the parties in which the appellant waived his right to appeal to
the Board , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant , who was employed at the agency as a Mail P rocessing Clerk ,
suffered an on -the-job injury on March 25, 2012. Initial Appeal File (IAF), Tab 1
at 77-78. After returning to work, the appellant had numerous absences , and the
agency subsequently issued him a Letter of Warning regarding his absences in
November and December 2013. IAF, Tab 5 at 26 -27. The agency rem oved the
appellant effective August 15, 2015. IAF, Tab 5 at 36-37, 41 -44. In November
2015, the appellant, who was represented at the time, entered into a settlement
agreement w ith the agency. Id. at 27 -35. In that agreement , the agency agreed to
remov e the August 2015 disciplinary removal from his personnel file and instead
separat e him, effect ive January 1, 2016, with a non disciplinary removal for
medical inability to perform the duties of his position , and the appellant agreed to
subsequently apply for disability retirement . Id. The appellant also agreed to
waive any and all appeal rights to the Board for “causes of action of any kind,
nature, and character, known and unkno wn, which Complainant may now have or
3
has ever had against Postal Service, or any of its officers, agents, and employees,
which arose in whole or in part from Complainant’s employment relationship
with Postal Service, and which are based upon incidents, oc currences, or actions
taking place prior to the execution of this agreement.” Id. at 28. On January 25,
2017, the appellant filed this appeal in which he alleged that he was challenging
the following actions: his removal, the failure to restore, involuntary resignation,
involuntary retirement, a reduction in force, and violations of the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301 -4335) and the Veterans Employment Opportunities
Act of 1998.2 IAF, Tab 3.
¶3 The administrative judge issued a jurisdictional order that advised the
appellant that his appeal may not be within the Board’s jurisdiction , provided him
with the law and burden s of proof applicable to the Board’s jurisdiction over each
of the claims that the appellant indicated he was attempting to appeal , and set
deadlines for the parties to respond to the order. IAF, Tab 3. Although the
agency filed a response, the appellant did not respond. IAF, Tab 5. Without
holding a hearing, the administrative judge issued an initial decision that
addressed each of the appellant’s allegations and dismissed the appeal for lack of
jurisdiction. IAF, Tab 7, Initia l Decision (ID).
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, PFR File, Tab 1. The agency has filed a response to the petition. PFR File,
Tab 4 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Before considering the appellant’s petition for review, we find that we must
address the applicability of the settlement agreement between the parties , which
2 There may be a question as to timeliness. However, because the Board lacks
jurisdiction over the appeal, it need not address the issue of the timeliness of the
appellant’s initial appeal . Fletche r v. Office of Personnel Management , 118 M.S.P.R.
632, 635 n.2 (2012).
4
was submitted into the record below . IAF, Tab 5 at 27 -35. In considering the
impact of a prior settlement agreement on a pending ap peal, the Board will
consider the agreement to determine the effect on the Board appeal and any
waiver of Board appeal rights, even when , as here, the agreement was reached
outside of a Board proceeding.3 Swidecki v. U.S. Postal Service , 101 M.S.P.R.
110, ¶ 7 (2006). The appellant may challenge the validity of the settlement
agreement if he believes it was unlawful, involuntary, or resulted from fraud or
mutual mistake. Id., ¶ 13. An appellant has the burden of showing that he
involuntarily entered into a settlement agreement. Id. An app ellant’s mere
post-settlement remorse or change of heart cannot serve as a basis for setting
aside a valid settlement agreement. Hinton v. Department of Veterans Affairs ,
119 M.S.P.R. 129 , ¶ 4 (2013).
¶6 The appellant also may challenge the enforceability of any waiver of Board
appeal rights. Such a waiver 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. Swidecki , 101 M.S.P.R. 110, ¶ 17. In deciding whether the appellant
freely and voluntarily entered into the settlement agreement, the Board will
conside r whether he was represented, whether he has demonstrated that he was
mentally impaired when the agreement was reached, and whether he has
3 Although the administrative judge did not provide the appellant with jurisdictional
burden s of proof concerning the settlement agreement, we find it unnecessary to remand
this appeal for a proper jurisdictional notice. See Burgess v. Merit Systems Protection
Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (finding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional issue).
The Bo ard has found that an administrative judge’s defective notice can be cured if the
agency’s pleadings contain the notice that was lacking in the jurisdictional order. Scott
v. Department of Justice , 105 M.S.P.R. 482 , ¶ 6 (2007). Here, the agency adequately
informed the appellant in its narrative response that the appellant has provided no
showing that the settlement agreement was obt ained under coercion or
misrepresentation. IAF, Tab 5 at 12. On review, the appellant does not challenge the
validity of the settlement agreement or the enforceability of the waiver clause. PFR
File, Tab 1.
5
otherwise shown that he was unable to understand the nature of the settlement
agreement fully . Id.
¶7 Here, the appel lant was represented by a union representative during
settlement negotiations , and both the appellant and his representative signed the
settlement agreement. IAF, Tab 5 at 35. Such representation is significant in
determining the validity of an appeal -rights waiver. Clede v. Department of the
Air Force , 72 M.S.P.R. 279, 285 (1996), aff’d , 113 F.3d 1257 (Fed. Cir. 1997)
(Table). Th e agreement specifically provided that the appellant and the agency
entered into it voluntarily, without coercion or duress. IAF, Tab 5 at 34. The
appellant has provided no arguments that he was mentally impaired when the
agreement was reached, or that h e entered into the agreement under duress or
coercion.
¶8 Furthermore, we find that the November 24, 20 15 settlement agreement
includes an explicit waiver of the appellant’s Board appeal rights over any action
“which arose in whole or in part from [the appellant’s] employment relationship
with Postal Service, and which are based upon incidents, occurrences, or actions
taking place prior to the execution of this agreement .” IAF, Tab 5 at 27 -29. We
further find that , in this appeal, the appellant is contesting his removal and
matters that preceded his removal. All of these matters thus arose prior to , or as a
result of the terms of, the settlement agreement entered into by the parties . By
the explicit terms of the settlement agreement, which we fin d that the appellant
knowingly and voluntarily signed, he waived further Board appeal rights
concerning his removal.4 We find the waiver enforceable.
4 To the extent the appellant is claiming that he left the agency as a result of an
involuntary resignation or involuntary retirement, the record shows he was removed
from his position based on a charge of inability to perform. Because the appellant was
removed by the agency from his position as a Ma il Processing Clerk, it is not necessary
to analyze this matter a s a constructive adverse action. T o the extent the administrative
judge did so, we vacate those findings in the initial decision.
6
¶9 On review, the appellant reasserts the numerous allegations he raised below
concerning his on-the-job injury, his resulting medical treatment, the failure of
the agency to provide him with a modified assignment, his removal , and various
laws he claims were violated by the agency during his employment and removal .5
PFR File, Tab 1 at 4. However, because this appeal is properly dismissed for lack
of jurisdiction based on the terms of the settlement agreement, we need not reach
the other issues raised by the appellant on review. See Lee v. U.S. Postal Service ,
111 M.S.P.R. 551, ¶ 10 (2009) , aff’d, 367 F. App ’x 137 (Fed. Cir. 2010) .
¶10 Accordingly, we find that the Board lacks jurisdiction over the matters
raised in this appeal based on the terms in the settlement agreement.
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s fina l 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
5 The appellant has attached letters of reference and various medical and financial
document s to his petition for review without a showing that they were unavailable
before the record closed despite his due diligence . PFR File, Tab 1 at 5-81. Thus,
under 5 C.F.R. § 1201.115 , the Board need not consider them. To the extent that some
of the documents were submitted for a first time on review, we find that they are not
material to th e appellant’s voluntariness of entering into the settlement agreement and
do not warrant a different outcome. See Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) ; PFR File, Tab 1 at 6 -15, 37 -39, 57-81.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable t ime limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your rep resentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any req uirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
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 via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_DAMON_V_SF_0752_17_0611_I_1_FINAL_ORDER_1995430.pdf | 2023-01-23 | null | SF-0752 | NP |
3,739 | https://www.mspb.gov/decisions/nonprecedential/LOTT_WILLIAM_D_AT_0752_17_0337_I_1_FINAL_ORDER_1995434.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM D. LOTT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -17-0337 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey W. Bennitt , Esquire, Birmingham, Alabama, for the appellant.
Michael Rhodes , Esquire, Montgomery, 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 for lack of jurisdiction his appeal of an allegedly involuntary
acceptance of a lower -graded position. On petition for review, the appellant
argues that the Board’s jurisdiction attaches when an appellant makes 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 of jurisdiction and that he established jurisdiction in his
appeal by making a nonfrivolous allegation that his reduction in grade was
involuntary due to intolerable working conditions. 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 regulati on 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 peti tion 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 asserts in his petition for review that jurisdiction attache d to
his appeal when he ma de a nonfrivolous allegation of jurisdiction . Petition for
Review File, Tab 1 at 2 -4. A nonfrivolous allegation of jurisdiction is an
allegation of fact that, if proven, could es tablish a prima facie case that the Board
has jurisdiction over the appeal. Aldridge v. Department of Agriculture ,
110 M.S.P.R . 21, ¶ 10 (2008) . The appellant relies on Spruill v. Merit Systems
Protection Board , 978 F.2d 679 (Fed. Cir. 19 92), in support of his argument.
However, Spruill was not a case involving an allegedly involuntary adverse action
under 5 U.S.C. chapter 75 but an individual right of action (IRA) appeal brought
under the Whistleblower Protection Act . See Hessami v. Merit S ystems
Protection Board , 979 F.3d 1362 , 1367 -69 (Fed. Cir. 2020) (applying Spruill to
clarify the nonfrivolous allegation standard for establish ing Board jurisdiction in
whistleblower appeal s). Some later decisions of the U.S. Court of Appeals for the
3
Federal Circuit applied Spruill’s nonfrivolous allegation standard in non -IRA
cases. However, the Federal Circuit’s en banc decision in Garcia v. Department
of Homeland Security , 437 F.3d 1322 (Fed. Cir. 2006) (en banc) , made it clear
that Spruill does not apply in chapter 75 cases:
To sum marize, under 5 U.S.C. §§ 7701 and 7512, once a claimant
makes non -frivolous claims of Board jurisdiction, namely claims
that, if proven, establish the Board’s jurisdiction, then the claimant
has a right to a hearing. At the hearing, the claimant must prove
jurisdiction by a preponderance of the evidence. If th e Board
determines that the claimant fails to prove jurisdiction by a
preponderance of the evidence , then the Board does not have
jurisdict ion and the case is dismissed for lack of jurisdiction.
Garcia , 437 F.3d at 1344. The Board later explicitly adopted this rule when it
found “ [i]n constructive adverse action appeals, nonfrivolous allegations do not
establish jurisdiction; rather, the app ellant must prove by preponderant evidence
that the action was involuntary to establish Board jurisdiction .” Abbott v. U.S.
Postal Service , 121 M.S.P.R. 294 , ¶ 8 (2014) (citing Garcia , 437 F.3d at 1325 ).
Therefore, we conclude that the administrative judge correctly found that the
appellant was required to prove jurisdiction over his appeal by preponderant
evidence and that the administrative judge properly dismissed the appeal for lack
of jurisdiction . Initial Appeal File , Tab 7, Initial D ecision at 3-6.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum wit h which to file. 5 U.S.C. § 7703 (b).
Although 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 Since the issuance of the initial decision in this 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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. F ailure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have q uestions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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 yo ur representative receives this decision before
you do, then you must file with the 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, reli gion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Conta ct information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites. aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. 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 original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of App eals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals fo r the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LOTT_WILLIAM_D_AT_0752_17_0337_I_1_FINAL_ORDER_1995434.pdf | 2023-01-23 | null | AT-0752 | NP |
3,740 | https://www.mspb.gov/decisions/nonprecedential/MIGNONE_WILLIAM_J_PH_0752_18_0004_I_1_FINAL_ORDER_1995465.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM J. MIGNONE,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
PH-0752 -18-0004 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
William J. Mignone , Cherry Hill, New Jersey, pro se.
Christine Roark , Columbus, Ohio, 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 his appeal of his termination for lack of jurisdiction. On petition for
review, the appellant argu es that the Board has jurisdiction over his appeal
because he completed more than 2 years of Federal service when he 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
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
employed by the Navy and Defense Logistics Agency from August 1981 to
June 1985. 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 i nterpretation 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 invol ved 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 o f
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 se ction 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. § 120 1.113 (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 courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, w ww.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Boar d 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 cla imed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 r epresentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any r equirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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 Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | MIGNONE_WILLIAM_J_PH_0752_18_0004_I_1_FINAL_ORDER_1995465.pdf | 2023-01-23 | null | PH-0752 | NP |
3,741 | https://www.mspb.gov/decisions/nonprecedential/JUSTIS_RAYMOND_F_PH_0752_16_0188_I_1_FINAL_ORDER_1995466.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAYMOND F. JUSTIS,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
PH-0752 -16-0188 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raymond F. Justis , Cumberland, Maryland, pro se.
Stephanye Snowden , 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 agency’s decision removing him for 320 hours of absence without
leave .2 On petition for review, the appellant challenges the validity of 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
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’s petition for review was received on June 13, 2017, almost 4 months
after the February 14, 2017 finality date. Petition for Review (PFR) File, Tab 1; see
2
criminal conviction and argues that the administrative judge improperly ignored
his affirmative defe nses .3 Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for r eview.
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).
Initial Appeal File, Tab 31, Initial Decision (ID) at 18. In his motion to accept the
untimely filing, the appellant asserts that he did not receive the initial decision until
April 10, 2017, which would still make his petition untimely by nearly a month , for
which the appellant does not offer any a dditional explanation . PFR File, Tab 3 at 1.
Additionally, the agency’s response to the appellant’s petition for review was untimely
filed by 20 minutes. PFR File, Tab 5, Tab 7 at 5. Because we ultimately agree with the
administrative judge’s conclusio ns concerning the merits of the appellant’s appeal, we
need not address either party’s apparent untimeliness .
3 Contrary to the appellant’s assertion, the administrative judge addressed his
affirmative defenses of retaliation for prior equal employment opportunity activit y and
whistleblowing as well as harmful procedural error . ID at 9-15. We have reviewed the
administrative judge’s findings as to those affirmative defenses, and we see no basis for
reversing them.
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 yo ur situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to y our claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of rev iew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a g eneral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this dec ision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matt er, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via com mercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option 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
6
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JUSTIS_RAYMOND_F_PH_0752_16_0188_I_1_FINAL_ORDER_1995466.pdf | 2023-01-23 | null | PH-0752 | NP |
3,742 | https://www.mspb.gov/decisions/nonprecedential/BROWN_GARY_L_AT_315H_17_0513_I_1_FINAL_ORDER_1995468.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GARY L. BROWN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-315H -17-0513 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary L. Brown , Gainesville, Florida, pro se.
Heather G. Blackmon , Esquire, Gainesville, 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 termination appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneo us findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s du e 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 a ppeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify the appropriate jurisdictional standard , we
AFFIRM the initial dec ision.
¶2 The appellant is a preference eligible who was terminated from a Veterans
Recruitment Appointment (VRA) . Initial Appeal File (IAF), Tab 6 at 20, 25.
“VRAs are excepted appointm ents, made without competition, to positions
otherwise in the competitive service.” 5 C.F.R. § 307.103 . Individuals serving
under VRAs have the same appeal rights as excepted -service employees under
5 C.F.R. part 432 (concerning p erformance -based actions) and part 752
(concerning adverse actions) . 5 C.F.R. § 307.105 . In addition, any individual
serving under a VRA, whose em ployment is terminated within 1 year af ter the
date of such appointment, has the same right to appeal that termination under
5 C.F.R. § 315.806 as a career or career -conditional employee has during the first
year of employment . Maibaum v. Department of Veterans Affairs , 116 M.S.P.R.
234, ¶ 18 (2011); 5 C.F.R. § 307.105 .
¶3 In the initia l decision, the administrative judge correctly cited the statute
setting forth the rel evant definition of an excepted -service employee with appeal
rights pursuant to 5 U.S.C. chapter 75 . IAF, Tab 8, Initial Decision (ID) at 2
(citing 5 U.S.C. § 7511 (a)(1)(B)). However, the administrative judge erroneousl y
3
analyzed the appeal purs uant to the definition applicable to individuals in the
competitive service. ID at 2 -3; cf. 5 U.S.C. § 7511 (a)(1)(A) .
¶4 We modify the initial decision, as follows, to clarify the appropriate
jurisdictional standard applicable to the appellant. Only an “employee,” as
defined under 5 U.S.C. chapter 75, can appeal an adverse action to the Board.
Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 8 (2017) , aff’d sub nom.
Williams v. Merit Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018) ; see
5 U.S.C. §§ 7511 (a)(1), 7513(d). As relevant here, an “employee ” with adverse -
action appeal rights includes “a preference eligible in the excepted service who
has completed 1 year of current conti nuous service i n the same or similar
positions” in an Executive agency. 5 U.S.C. § 7511 (a)(1)(B)(i). When analyzing
section 7511(a)(1)(B), the Board defers to the regulation in 5 C.F.R. § 752.402 ,
which defines “current continuous employment” as “a period of employment or
service immediately preceding an adverse action without a break in Federal
civilian employment of a workday.” Winns , 124 M.S.P.R. 113, ¶¶ 13, 16 . Here,
the appellant acknowledges that he only served 9 months in his position, and he
has not alleged one of the regulatory grounds for appealing his termination under
5 C.F.R. § 315.806 . Petition for Review ( PFR ) File, Tab 2 at 3. Thu s, we find
that he has failed to make a nonfrivolous allegation of jurisdiction.2
¶5 We agree with the administrat ive judge’s finding that, to the extent the
appellant is raising a claim of disability discrimination, we lack the authority to
review such a claim absent an otherwise appealable action. ID at 3; see Wren v.
2 The administrative judge notified the appellant of how to establish he had chapter 75
appeal rights as an “employee” in the competitive service instead of the excepted
service. IAF, Tab 3 at 3-4. However, we find that any such error did not prejudice the
appellant’s substantive rights because he received adequate notice of the requirement to
prove that he completed 1 year of current continuous service to qualify as an
“employee” with appeal rights under 5 U.S.C. chapter 75, which is the dispositive issue
in this appeal. Id.; see 5 U.S.C. § 7511 (a)(1)(B). Further, the administrative judge
correctly notified the appellant of the regulatory grounds for appealing a probationary
termination under 5 C.F.R. § 315.806 . IA F, Tab 3 at 2 -3.
4
Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d , 681 F.2d 867 , 871 -73
(D.C. Cir. 1982). In his petition for review, the appellant reasserts his arguments
on the merits of his termination. PFR File, Tab 2 at 3; IAF, Tab 1 at 2. We
decline to address these arguments further because they are not relevant to the
dispositive jurisdiction al issue.
¶6 Accordingly, we affirm the dismissal of 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 li mit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Boar d 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 that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 cl aims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingt on, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with th e
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Federa l Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims b y any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain w histleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_GARY_L_AT_315H_17_0513_I_1_FINAL_ORDER_1995468.pdf | 2023-01-23 | null | AT-315H | NP |
3,743 | https://www.mspb.gov/decisions/nonprecedential/GOLSTON_RHONDA_DC_1221_15_0769_W_1_FINAL_ORDER_1995482.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RHONDA GOLSTON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-1221 -15-0769 -W-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rhonda Golston , Twinsburg, Ohio, pro se.
Monique Smart , Winston -Salem, North 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 for lack of jurisdiction her individual right of action (IRA) appeal. For
the reasons set forth below, the appellant ’s petition for review is DISMISSED as
untimely file d without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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, a Recreation Therapist at a Department of Veterans Affairs
Medical Center, filed an IRA appeal with t he Board in which she alleged that the
agency retaliated against her because of her whistleblowing activity. Initial
Appeal File ( IAF), Tab 1 .2 The administrative judge issued an initial decision
that dismissed the appeal for lack of jurisdiction based o n the written record,
finding that, although the appellant had exhausted her admi nistrative remedies
with the Office of Special Counsel, she had failed to raise a non frivolous
allegation that she made a protected disclosure under 5 U.S.C. § 2302 (b)(8). IAF,
Tab 18, Initial Decision (ID) at 5 -7. The initial decision specified that it would
become final on August 24, 2016 , unless a petition for review was filed by that
date. ID at 7.
¶3 On August 8 , 2016, the appellant requested an extension of time to file a
petition for review of the administrative judge ’s July 20, 2016 initial decision .
Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued an order
granting the appellant an exten sion of time to file her petition for review on or
before September 23, 2016. PFR File, Tab 2 at 1. In the order, the Clerk also
informed the appellant that if she failed to file her petition by September 23,
2016, the administrative judge’s July 20, 201 6 initial decision would become the
final decision of the Board. Id.
¶4 The appellant filed her petition for review by facsimile (fax) on
September 26, 2016, three days after the filing deadline. PFR File, Tab 3. In a
letter acknowledging the petition for review, the Clerk of the Board indicated that
the petition was untimely because it was not filed by the September 23, 2016
deadline granted in the Board’s extension -of-time order. PFR File, Tab 4 at 1.
2 On September 8, 2015, the appellant was removed from her position. IAF, Tab 18,
Initial Decision at 3 n.2. On September 30, 2015, she timely f iled an appeal with the
Board challenging her removal , and the Board affirmed the agency’s removal action.
Id.; see Golston v. Department of Veterans Affairs , MSPB Docket No. DC -0752 -16-
0002 -I-1, Initial Decision at 1 (Jan . 21, 2016).
3
The Clerk informed the appellant that a petition for review that appears to be
untimely must b e accompanied by a motion to accept the filing as timely and/or to
waive the time limit for good cause. Id. The acknowledgment letter from the
Clerk included a form to assist the appellant in filing her motion. Id. at 2. The
Clerk also informed the appellant that her m otion had to be filed by October 20,
2016 . Id.
¶5 The appellant responded by filing a timely motion to waive the time limit
for good cause, which she describes as “extreme interference” at two libr aries
consisting of “electronic and manipulation programs” that caused her difficulty in
accessing documents attached to an old email account and in preparing her
petition for review on Friday, September 23, 2016. PFR File, Tab 5 at 10. She
states that, after she finished preparing her petition, she went to numerous
libraries and the United Parcel Service (UPS) to fax her petition to the Board on
the filing deadline, but they were closed; therefore, her only option was to fax her
petition on Monday, Septe mber 26, 2016. Id. at 11. She also submits a copy of a
UPS fax transmission report dated September 26, 2016, indicating that 69 pages
were sent from a remote station at UPS on that date. Id. at 20. The fax
transmission report from UPS also includes the following handwritten remarks:
“Interference” and “sent to the High School.” Id. In addition, she submits a copy
of 5 U.S.C. § 1221 , and she argues the merits of her IRA appeal. Id. at 10 -12, 19.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s petition for review is dismissed as untimely filed without good
cause shown .
¶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 afte r the party received the initial decision. 5 C.F.R. § 1201.114 (e).
Here, the initial decision was issued on July 20, 2016, the appellant’s petition for
review was originally due on Aug ust 24, 2016, and the Clerk of the Board granted
4
her request for an extension of time to file her petition for review no later than
September 23, 2016 . ID at 1, 7; PFR File, Tab 2 at 1. Accordingly, the
appellant’s September 26, 2016 petition for review was untimely by 3 days. F or
the reasons stated below, we find that the appellant has not shown good cause for
her failure to meet the filing deadline.
¶7 The Board may extend the time limit for filing a petition for review when
good cause is shown for th e untimeliness. Beckley v. U.S. Postal Service ,
43 M.S.P.R. 397 , 399 (1990); see 5 C.F.R. § 1201.113 (d). However, in the
interest of judicial efficiency and fairness, regardless of how minimal the delay,
the Board will not waive its timeliness requirements in the absence of good cause .
The party who submits an untime ly petition for review has the burden of
establishing good cause for the untimely filing by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
See Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To
determine if a party has shown good cause, the Board will consider the length of
the delay, the reasonableness of the party’s excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casual ty or misfortune
that similarly shows a causal relationship to her inability to timely file her
petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995),
aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8 Applying these factors, we find that the appellant has not shown good cause
for her filing delay in this case. Although the appel lant is pro se and a delay of
3 days is relatively brief, we find that she has not shown that she exercised due
diligence or ordinary prudence under the circumstances. Here, the Clerk of the
Board expressly advised the appellant of the time limit for filing her petition for
review with the Board and she does not allege any confusion about the filing
deadline. PFR File, Tab 2 at 1. We find that the appellant’s failure to file her
5
petition for review in accordance with these unambiguous instructions does not
reflect due diligence. See Scho enherr v. Department of Veterans Affairs ,
73 M.S.P.R. 99 , 102 (1997) (determining that a pro se appellant did not exercise
due d iligence when she did not follow the unambiguous instructions for filing a
petition for review set forth in the initial decision) ; Noble v. U.S. Postal Service ,
73 M.S.P.R. 59 , 62-63 (1997) (finding that, while the appellant’ s 2-day delay in
filing was minimal and she was not represented by an attorney , these factors were
outweighed by her failure to exercise due diligence and ordinary p rudence under
the circumstances).
¶9 Although the appellant states that she experienced difficulty preparing and
filing her petition for review on the date that it was due, we find that waiting until
the last day to complete work on one’s petition for review does not demonstrate
due diligence . See De La Garza v. U.S. Postal Service , 45 M.S.P.R. 357 , 358 -59
(1990).3 Because the appellant’s arguments on review do not show goo d cause
for her failure to file a timely petition for review or motion for an additional
extension of time to file her petition, we find that her petition is untimely filed by
3 days without good cause shown for the delay.4 See Melendez v. Department of
Homeland Security , 112 M.S.P.R. 51 , ¶ 16 (2009) (finding that pro se appellant
did not demonstrate that she exercised due diligence or ordinary prudence in
filing her appeal and, therefore, that she did not show good caus e for her 3 -day
3 Under the Board’s regulations, the appellant had several options for timely filing her
petition with the Board. See 5 C.F.R. § 1201.114 (d) (specifying that all motions and
pleadings must be filed with the Clerk of the Board “by commercial or personal
delivery, by facsimile, by mail, or by electronic filing in accordance with ” 5 C.F.R.
§ 1201.14 ); see also 5 C.F.R. § 1201.4 (l) (providing that the date of a filing by mail is
determined by the postmark date). The appellant’s argument, that she waited until the
last day for filing to complete work on her petition and her attempt to file her petition
after hours was unsuccess ful because everything was closed, does not demonstrate due
diligence. See De La Garza , 45 M.S.P.R. at 358-59.
4 The appellant does not allege any ambiguity in the filing instructions that she received
or confusion about the Board’s procedures, and s he does not allege that any failure of
the Board’s electronic filing methods prevented her from filing a timely petition.
6
filing delay); Noble , 73 M.S.P.R. at 62 -63 (finding that pro se appellant did not
show good cause for her 2 -day filing delay, considering that she did not allege
any ambiguity in the filing deadline or in the Board’s instructions and
proce dures); Snipes v. Office of Personnel Management , 32 M.S.P.R. 66 , 67
(finding no showing of good cause to waive a 3 -day filing delay whe n the
appellant ’s submissions did not show that she could not have obtained evidence
prior to the filing deadline and she did not request an extension of time to fil e),
aff’d , 831 F.2d 306 (Fed. Cir. 1987) (Table); 5 C.F.R. §§ 1201.113 (d),
1201.114(f).
¶10 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regardin g the dismissal of the appellant’s IRA appeal for lack of
jurisdiction.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of you r claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, th e Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
5 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.
7
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review y our case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal C ircuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of A ppeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Pro tection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review o f this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www .uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C . 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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 | GOLSTON_RHONDA_DC_1221_15_0769_W_1_FINAL_ORDER_1995482.pdf | 2023-01-23 | null | DC-1221 | NP |
3,744 | https://www.mspb.gov/decisions/nonprecedential/WALLS_KIMBERLY_PH_0714_17_0444_I_1_FINAL_ORDER_1995488.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIMBERLY WALLS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0714 -17-0444 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher H. Bonk , Esquire, and Kevin L. Owen , Esquire, Silver Spring,
Maryland, for the appellant.
Stephen Butera , Esquire, and Tera Sheppard , Clarksburg, West Virginia,
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 appellant’s performance -based removal, an action taken under
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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
38 U.S.C. § 714. Generally, we grant petiti ons 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 t he 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. Except as expressly MODIFIED
regarding the retroactive application of the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017, Pub. L. No. 115 -41,
131 Stat. 862 (VA Accountability Act) (codified in relevan t part, as amended ,
at 38 U.S.C. § 714 ), and to clarify the applicable standard for analyzing the
appellant’s affirmative defense of retaliation for equal employment opportunity
(EEO) activity , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS -05 File Clerk (Scanner) for the agency . Initial
Appeal File (IAF), Tab 7 at 32 -33. Her duties included scanning medical
documentation into electronic health record s. Id. at 33. One of the critical
elements in her performance plan was Data Capture/Productivity/Accuracy. Id.
The performance standards for this element required a scanning accuracy rate of
95%. Id. On February 14, 2017, the appellant was notified that her performance
in this critical element was unacceptable because her scanning accuracy rate was
less than 95%. Id. at 39 -40. As a result, the appellant’s supervisor placed her on
3
a 90 -day perform ance improvement plan (PIP), scheduled to run from
February 15 to May 15, 2017. Id.
¶3 However, on February 18, 2017, the appellant began an extended leave of
absence for medical reasons , and she did not return to duty until June 22, 2017.
IAF, Tab 46, Hearing Compact Disc, Day 2 (testimony of the appellant). During
this period of absence, on May 4, 2017, the appellant filed a formal EEO
complaint with the agency , alleging that she was subjected to a hostile work
environment based on race and disability. IAF, Tab 7 at 173 -75.
¶4 Because she had been absent for nearly t he entire PIP, on June 26, 2017, the
agency notified the appellant that it would continue her PIP for an additional
90 days, i.e., until September 26, 2017. IAF, Tab 7 at 47 -48, Tab 45, Hearing
Compact Disc, Day 1 (testimony of the appellant’s supervisor) . On August 21,
2017, the agency issued a notice proposing to remove the appellant for
unsatisfactory performance under 38 U.S.C. § 714 . IAF, Tab 7 at 65 -66. In
support of the charge, the agency alleged that, although the appellant had
received additional training and supervision during the PIP to improve her
scanning accuracy, her overall scanning accuracy rate remained below 95%. Id.
at 65.
¶5 After the appellant replied to the proposal orally an d in writing, id. at 68,
72-128, the deciding official issued a decision on September 8, 2017, sustaining
the charge and finding removal warranted, id. at 68 -70. On September 12, 2017,
the appellant amended her EEO complaint to include her removal. Id. at 177 -79.
Her removal became effective on September 13, 2017. Id. at 63.
¶6 On September 21, 2017, the appellant filed a Board appeal, contesting the
merits of her removal and raising several affirmative defenses, including a claim
of retaliation for EEO activity. IAF, Tab 1 at 4, 6, Tab 42 at 8 -14. After a
hearing, the administrative judge issued an initial decision reversing the agency’s
action. IAF, Tab 47, Initial Decision (ID). Finding that the VA Accountability
Act could not be applied to events that occurred prior to its June 23, 2017
4
enactment, the administrative judge considered only the appellant’s performance
from that date forward in deciding whether the agency proved its charge. ID
at 21-24. The administrative judge found that the appella nt’s overall scanning
accuracy from June 23, 2017, onward exceeded the 95% minimum threshold, and
thus, her performance was not unsatisfactory as charged. ID at 24 -28. Although
he reversed the removal on that basis, the administrative judge went on to fi nd
that the appellant failed to prove her affirmative defense of reprisal for EEO
activity. ID at 28 -33.
¶7 The agency has filed a petition for review, arguing that the administrative
judge erred in finding that the VA Accountability Act would have impermiss ible
retroactive effect if applied to events predating its enactment. Petition for
Review (PFR) File, Tab 1 at 6 -7, 9 -21. The agency further argues that the
administrative judge should have dismissed the appeal as premature because the
appellant previous ly elected to challenge her removal through the EEO process.
Id. at 7-8, 21 -23. The appellant has filed a response. PFR Fi le, Tab 3.
ANALYSIS
The administrative judge did not abuse his discretion in declining to dismiss the
appeal as prematurely filed.
¶8 Under 5 U.S.C. § 7702 (a)(1) -(2), an employee who has been affected by an
action that is appealable to the Board and who alleges that a basis for the action
was discrimination may initiate review o f the action by either filing a formal EEO
complaint with his employing agency or filing an appeal with the Board, but not
both. Mc Kinney v. Defense Commissary Agency , 93 M.S.P.R. 659, ¶ 6 (2003).
Whichever is filed first is deemed to be an election to proceed in that forum.
Cloutier v. U.S. Postal Service , 89 M.S.P.R. 411 , ¶ 5 (2001); 29 C.F.R.
§ 1614.302 (b). When an appellant files a timely formal complaint of
discrimination prior to appealing to the Board, the right to appeal to the Board
does not vest until either the agency issues a final decision on the discrimination
complaint or 120 days elapse from the date the discrimination complaint is filed
5
with the agency. Price v. Depart ment of Veterans Affairs , 105 M.S.P.R. 126 , ¶ 9
(2007); 5 C.F. R. § 1201.154 (b). When an appellant files an appeal prematurely
under 5 C.F.R. § 1201.154 , the administrative judge will normally dismiss the
appeal without prejudice to refiling. 5 C.F.R. § 1201.154 (c). However, “[i]f
holding the appeal for a short time would allow it to become timely, the judge
may hold the appeal rather than dismiss it.” Id. An administrative ju dge has
broad discretion in deciding whether to dismiss an appeal as premature. Baker v.
U.S. Postal Service , 86 M.S.P.R. 349, ¶ 10 (2000).
¶9 In this case, the administrative judge decided to proceed with adjudication
rather than dismiss the appeal without prejudice out of concern for certain
deadlines in the law. Specifically, he found that the VA Accountability Act
provides a 10 -day statutory deadline for filing a Board appeal and makes no
exception that would allow an appellant to first exhaust EEO proceedings. IAF,
Tab 14 at 3; see 38 U.S.C. § 714(c)(4)(B). He further foun d that the
VA Accountability Act provides a 180 -day deadline for an administrative judge to
issue “a final and complete decision ” in the appeal, and that this deadline likewise
provides no exception related to agency processing of an EEO complaint. IAF,
Tab 14 at 3; see 38 U.S.C. § 714(d)(1). In order to protect the appellant’s right to
appeal her removal to the Board, the administrative judge decided to proceed with
adjudication rather than wait for the EEO process to be exhausted. IAF, Tab 14
at 3-4. Although the Board has subsequently interpreted the statutory scheme
differently, Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 15-24, in
light of the uncertainty of the law at the time, we find that the administrative
judge did not abuse his discretion in declining to dismiss the appeal.
¶10 Moreover, even if the admin istrative judge had abused his discretion in
declining to dismiss the appeal without prejudice, we find that his ruling did not
prejudice the agency’s substantive rights. See Karapinka v. Department of
Energy , 6 M.S.P.R. 124 , 127 (1981) (finding that an administrative judge’s
procedural error is of no legal consequence unless it is shown to have adversely
6
affected a party’s substantive rights). Because the appellant amended her EEO
complaint to include her removal on September 11, 2017, the 120 -day period
expired approximately January 10, 2018, more than 2 months before the
administrative judge issued the initial decision in this appeal. IAF, T ab 7 at 177;
ID at 1. It is the Board’s practice to adjudicate an appeal that was premature
when it was filed but becomes ripe for adjudication while pending with the Board.
See, e.g. , Summerset v. Department of the Navy , 100 M.S.P.R. 292 , ¶ 9 (2005) .
Given these circumstances, we find that, even assuming that the administrative
judge should have d ismissed the appeal as premature when the agency initially
asked him to do so, any such error would provide no reason to disturb the initial
decision.
The administrative judge properly found that the agency failed to prove its
charge.
¶11 As explained above, the administrative judge found that the agency was not
permitted to remove the appellant under the VA Accountability Act based on
performance deficiencies that preceded its June 23, 2017 enactment. ID at 21-24.
Therefore, he restricted his analysis to a lleged performance deficiencies occurring
after that date. ID at 23 -26. On petition for review, the agency argues that the
administrative judge should have considered the appellant’s performance during
the entire time period at issue because the VA Accou ntability Act would not have
impermissible retroactive effect as applied to events predating its enactment.
PFR File, Tab 1 at 6 -7, 9-21. However, we find that this issue has been settled by
a development in the case law during the pendency of the petiti on for review.
Specifically, on March 31, 2020, the U.S. Court of Appeals for the Federal
Circuit issued Sayers v. Department of Veterans Affairs , 954 F.3d 1370 , 1380 -82
(Fed. Cir. 2020) , finding that 38 U.S.C. § 714 has impermissible retroactive
effect, and Congress did not authorize its retroactive application. Therefore, the
administra tive judge was correct in finding that the agency may not use the
VA Accountability Act to discipline the appellant for her performance prior to
7
June 23, 2017. The agency does not dispute the administrative judge’s finding
that the appellant’s performance after that date was satisfactory, and the record
supports his finding that the appellant’s performance during this period exceeded
the 95% accuracy standard specified in the notice of proposed removal. ID
at 24-26; IAF, Tab 7 at 53-54, 65, Tab 40 at 83-87. For these reasons, we agree
with the administrative judge that the agency failed to prove its charge by
substantial evidence.2
The administrative judge correctly found that the appellant failed to prove her
affirmative defense.
¶12 The appellant argued b elow that her removal was in retaliation for prior
EEO activity. IAF, Tab 34 at 6. The administrative judge found that the
appellant failed to prove this claim because, although she had engaged in EEO
activity, she failed to show that her EEO activity wa s a motivating factor in her
removal. ID at 31 -33. The appellant has not challenged this finding on review.
See 5 C.F.R. § 1201.115 (“The Board normally will consider only issues rais ed in
a timely filed petition or cross -petition for review.”). Although we see no basis
to disturb the administrative judge’s ultimate conclusion, we find it appropriate to
clarify the standard.
2 Even if the appellant’s performance after June 23, 2017, were unsatisfactory, there
would still be a question as to whether the charge, as written, could be sustained. In
Wilson , 2022 MSPB 7, ¶¶ 4, 26 -32, the Board declined to sustain a “Neglect of Duty”
charge based on events occurring both before and after the VA Accountability Act’s
June 23, 2017 enactment. The Board found that, because the charge did not distinguish
between conduct that predated and postda ted the enactment, and the charged events
were “ so factually interrelated that they cannot be fairly separated ,” the charge as a
whole could not be sustained. Id., ¶¶ 31 -32 (quoting Boss v. Department of Homeland
Security , 908 F.3d 1278 , 1282 -83 (Fed. Cir. 2018) ). The instant appeal appears to
present similar circumstances because the charge does not differentiate b etween the
appellant’s performance predating and postdating the VA Accountability Act enactment
date, and is based on a continuum of factually -interrelated events. Nevertheless,
because the agency is unable to prove its charge even considering the appella nt’s post -
June 23, 2017 performance, we do not reach the issue of whether, under Wilson , the
charge should be reversed on this alternative basis .
8
¶13 In explaining the analytical framework, the administrative j udge conflated
the standards set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 ,
¶ 51 (2015) , and Warren v. Departmen t of the Army , 804 F.2d 654 , 656 -58 (Fed.
Cir. 1986). ID at 29 -30. To be clear, the standard set forth in Savage applies to
EEO retaliation cla ims under 5 U.S.C. § 2302 (b)(1), whereas the standard set
forth in Warren is restricted to non -EEO retaliation claims under 5 U.S.C.
§ 2302(b)(9)(A)(ii). See Mattison v. Department of Veterans Affairs ,
123 M.S.P.R. 492, ¶ 8 (2016). Therefore, the Warren standard is inapplicable to
the instant appeal.
¶14 Further, the administrative judge failed to recognize that in Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 (2016) , the Board clarified its
prior holding in Savage , 122 M.S.PR. 612 , ¶¶ 42 -43, 51. In particular, the Board
clarified that it would consider evidence of retaliatory motive as a whole , rather
than as “direct” or “indirect” evidence and that, as already explained in Savage ,
an appellant was not required to prove a “convincing mosaic” of retaliation.
Gardner , 123 M.S.P.R. 647 , ¶¶ 28 -31. The administrativ e judge used the terms
“direct and indirect evidence ” and “convincing mosaic .” ID at 28 -29.
¶15 Nevertheless, reading the substance of the administrative judge’s analysis,
we find that he evaluated the appellant’s claim properly under the
Savage /Gardner standard, and appropriately considered all the evidence as a
whole in concluding that she failed to show that her EEO activity was a
motivating factor in her removal. ID at 29 -33. Thus, the administrative judge’s
error in setting forth the analytical framew ork did not prejudice the appellant’s
substantive rights and provides no basis to disturb the initial decision.3 See
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
3 The administrative judge found that the appellant did not prove that her EEO activity
was a motivating facto r in the agency’s decision to remove her . ID at 31-33. Because
we discern no error with the administrative judge’s motivating factor analysis or
conclusion regarding this claim, we do not reach the question of whether retaliation was
9
ORDER
¶16 We ORDER the agency to cancel the removal action and restore the
appellant effective September 13, 2017 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶17 We also ORDER the agenc y 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 appellan t 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 amou nt 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 enforcement
with the office that issued the initial decision on this a ppeal 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 an d 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 Agricultur e (NFC) or the Defense Finance and
a “but -for” cause of the removal action. See Pridgen v. Office of Management &
Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
10
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 wi th all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), o r 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL 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 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
4 Since the issuance of the initial decision in this matter, the Board has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.
11
regarding which cases fall within their jurisdiction. If you wish to seek 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 wheth er a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board 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 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 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 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raise s no challenge to the Board’s
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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703( b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during th e back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, ref unds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with deci sion.
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 appli cable)
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 -50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump
Sum Payment, Correction to Prom otion, 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 r equire clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | WALLS_KIMBERLY_PH_0714_17_0444_I_1_FINAL_ORDER_1995488.pdf | 2023-01-23 | null | PH-0714 | NP |
3,745 | https://www.mspb.gov/decisions/nonprecedential/CASTRO_GIANNA_AT_0752_17_0200_I_1_FINAL_ORDER_1995502.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GIANNA CASTRO,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-0752 -17-0200 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angelo Filippi , Esquire, Fort Lauderdale, Florida, for the appellant.
Jeffrey N. Poulin , Springfield, 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
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contai ns erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of t he 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 petit ioner’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 why the suitability regulation s of the Office of
Personnel Management (OPM) are not a source of jurisdiction over this appeal ,
we AFFIRM the initial decision.
¶2 Approximately 4 months into her excepted -service appointment, the
appellant was terminated during her trial period for her alleged lack of candor in
her application for employment with the agency. Initial Appeal File (IAF), Tab 1
at 7-9, Tab 2 at 3. On appeal to the Board, she argued, among other things, that
her termination constituted a suitability action. IAF, Tab 9 at 1 3-15. The
administrative judge found that the appellant failed to make a nonfrivolous
allegation of Board jurisdiction, and he dismissed her appeal without holding the
requested hearing. IAF, Tab 11, Initial Decision (ID). H e concluded that she had
failed to nonfrivolously allege that she had accrued adverse action appeal rights
under 5 U.S.C. chapter 75 , ID at 2-4, or that she was denied procedures set forth
in 5 C.F.R. § 315.805 conce rning terminations for conditio ns arising
preappointment ,2 ID at 4 -5. He further determined that she had failed to make a
2 The appellant has not challenged these findings on review, and we find no material
error in the administrative judge’s ana lysis. Because the appellant was serving in the
excepted service, the regu latory right of appeal on the limited grounds set forth in
5 C.F.R. § 315.806 may not have even been available to her. See 5 C.F.R.
§ 210.101 (b). Regardless, we find no reason to disturb the administrative judge’s
3
nonfrivolous allegation that she was in a position covered by OPM’s suitability
regulations at 5 C.F.R. part 731 or that she had been subjected to a suitability
action as defined in those regulations . ID at 5 -6.
¶3 On petition for review, the appellant argues that her position was covered
by the suitability regulations and that her termination was a suitability action.
Petition for Revie w (PFR) File, Tab 1 at 3 -6. A position in the excepted service
where the incumbent can be noncompetitively converted to the competitive
service constitutes a covered position. 5 C.F.R. § 7 31.101 (b). The Standard
Form 50 (SF -50) documenting the appellant’s appointment states that her
appointment may be converted to a career appointment in not less than 3 years
and not more than 4 years. IAF, Tab 10 at 22. Thus, as the agency seems to
acknowledge on review, it appears the appellant was in a covered position. PFR
File, Tab 3 at 11.
¶4 We nevertheless find that she failed to nonfrivolously allege that her
termination was a suitability action under OPM’s regulations .3 As a preliminary
matter, we find no documents or alleged facts in the record that would support the
appellant’s claim that this was a suitability action. For instance, t he proposal and
decision letters make no reference to the agency making a suitability
determination, ta king a suitability action, or otherwise finding that the appellant
had made a material, intentional false statement, or deception or fraud in
examination or appointment. IAF, Tab 1 at 7 -10, Tab 2 at 3. The SF -50
alternative analysis that the process provided to the appellant satisfied the requirements
of 5 C.F.R. § 315.805 .
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s). An allegation generally will be considered non frivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appeal.
Id.
4
documenting her termination referenced 5 C.F.R. § 315.805 , rather than part 731,
as the legal authority for the action.4 IAF, Tab 2 at 4.
¶5 The appellant asserts that the agency’s finding that she lacked candor in her
applicatio n is akin to a finding that she had made a “material, intentional false
statement, or deception or fraud in examination or appointment,” which is a factor
upon which a suitability action may be taken. PFR File, Tab 1 at 5; see 5 C.F.R.
§ 731.202 (b)(3). However, t he appellant has failed to allege facts that, if proven,
would show that the agency’s lack-of-candor finding was equivalent to a finding
of a “material, intentional false stateme nt, or deception or fraud in examination or
appointment .” IAF, Tab 9 a t 13-15; PFR File, Tab 1 at 3-6; see, e.g. , Ludlum v.
Department of Justice , 278 F.3d 1280 , 1283 -85 (Fed. Cir. 2002) (explaining that
lack of candor and falsification are different, though related, forms of
misconduct). Moreover, OPM has not delegated authority to employing agencies
to take suitability actions in matters invol ving a “material, intentional false
statement, or deception or frau d in examination or appointment, ” 5 C.F.R.
§ 731.103 (g), and OPM’s suitability regulations are not a source of jurisdiction
when an employing agency exceeds its delegated authority, see Edwards v.
Department of State , 98 M.S.P.R. 481 , ¶ 7 (2005) ; 5 C.F.R. § 731.501 (a).
4 Guidance from OPM suggests citing the legal authority for a trial period termination
for preappointment reasons as “Reg 315.805 Eq,” indicating the action was taken
pursuant to agency procedures equivalent to those required under the civil service laws
and regulations, or under other procedures. Guide to Process ing Personnel Actions,
Chapter 31, available at www.opm.gov/feddata/gppa/Gppa31.pdf . The administrative
judge’s statement that the termination “was explicitly taken as an adverse action
pursuant t o [5 U.S.C. c]hapter 75,” ID at 6, is not supported by any document or
nonfrivolous allegation of fact in the record , but we find this statement immaterial to
the outcome. The appellant has failed to make a nonfrivolous allegation that the
termination was a suitability action under 5 C.F.R. part 731, and she has not contested
the administrative judge’s separate , explained conclusion that she failed to make a
nonfrivolous allegation that she possessed adverse action appeal rights under 5 U.S.C.
chapter 75 . ID at 2 -4; see 5 U.S.C. §§ 7511 , 7512, 7513(d).
5
¶6 Accordingly, we find that the appellant has failed to nonfrivolously allege a
basis for the Board’s jurisdiction over this matter as a suitability action or on any
other theory .5
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summar y of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5 The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114 -92,
§ 1086(f)(9), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state tha t
5 U.S.C. chapter 75, subchapter II, “does not apply to . . . a suitability action taken by
[OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the
Presid ent under [title 5] for the administration of the competitive service.” 5 U.S.C.
§ 7512 (F). Given o ur finding that the appellant failed to make a nonfrivolous allegation
that her termination was a suitability action under OPM’s regulations , we do not
consider the effect, if any, of section 7512(F) on this appeal, an issue that has not been
addressed by either party.
6 Since the issuance of the initial decision in this matter, the Board may have up dated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in sec tion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent j urisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
7 The original statutory provision that provided for judicial review of certain
whistleblowe r claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1 510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information ab out the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice , and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repres entation
for Merit Systems Protection Board appellants before the 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 co urts of appeals can be 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 | CASTRO_GIANNA_AT_0752_17_0200_I_1_FINAL_ORDER_1995502.pdf | 2023-01-23 | null | AT-0752 | NP |
3,746 | https://www.mspb.gov/decisions/nonprecedential/COOGAN_THOMAS_D_DC_831M_17_0400_I_1_FINAL_ORDER_1995536.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS D. COOGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-831M -17-0400 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas D. Coogan , Bethesda, Mar yland, 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 his retirement appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in an y future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpret ation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an a buse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federa l Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1 201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The appellant filed an appeal of a February 27, 2017 reconsideration
decision of the Office of Personnel Management (OPM) finding that he was
overpaid $3,906.00 in civil service annuity benefits. Initial Appeal File (IAF),
Tabs 1 -2. On May 9, 2017, OPM rescind ed its reconsideration decision due to a
deficiency in its overpayment calculation. IAF, Tab 9. OPM asserted that it
would review the file and its overpayment computation and issue a new decision.
Id. The administrative judge is sued an initial decision dismissing the appeal for
lack of jurisdiction , finding that OPM’s resci nding its decision divested the Board
of jurisdiction over the appeal . IA F, Tab 10.
¶3 The appellant has filed a petition fo r review. Petition for Review (PFR)
File, Tab 1. OPM has opposed the appellant ’s petition , and he has filed a reply.
PFR File, Tabs 4 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board has jurisdiction to hear appeals of final OPM decisions under
5 U.S.C. § 8347 (d) and 5 C.F.R. § 831.110 . Brown v. Office of Personnel
3
Management , 51 M.S.P.R. 261 , 263 (1991). If OPM completely rescinds its
reconsideration decision, the rescission divests the Board of jurisdiction over the
appeal in which the reconsideration decision is at issue, and the appeal must be
dismissed. Martin v. Office of Personnel Management , 119 M.S.P.R. 188 , ¶ 8
(2013). An exception to this rule exists, h owever, when OPM has rescinded its
decision but has failed to restore the appellant to the status quo ante. In such
cases, the Board will retain jurisdiction. Id., ¶ 10.
¶5 On review, the appellant argues that the administrative judge erred in
dismissing th e appeal because at the time of the rescission on May 9, 2017 , and
the administrative judge’s initial decision on May 10, 2017, OPM had not
refunded him $896.76 , which it had collected from his annuity payments prior to
his request for reconsideration. PF R File, Tabs 1, 5. The appellant further
submits evidence showing that on May 12, 2017, a payment in the amount of
$896.76 was credited to his account. PFR File, Tab 5 at 5, 7. Accordingly , we
find that OPM has completely rescinded its reconsideration d ecision and restored
the appellant to the status quo ante. Because resci nding a reconsideration
decision divests the Board of jurisdiction over an appeal in which that decision is
at issue, the Board lacks jurisdiction over the instant appeal. See Rorick v. Office
of Personnel Management , 109 M.S.P.R. 597 , ¶ 5 (2008).
¶6 On review, the appellant appears to cite to Campbell v. Office of Personnel
Management , 123 M.S.P.R. 240 (2016), in support of his argument that the Board
has jurisdiction over the appeal because OPM has not restored him to the status
quo ante. PFR File, Tab 1 at 4. Campbell , however, is distinguishable from this
case in that the Board there found it undisputed that OPM had not refunded the
money that it had withheld from the appellant’s decease d husband’s annuity.
Campbell , 123 M.S.P.R. 240 , ¶ 9. Here, in contrast, the appellant admits that
OPM has refunded the money i t withheld from his annuity.
¶7 The appellant also argues that OPM’s rescission letter fails to reliably
expla in what led OPM to rescind its decision or what additional work needs to be
4
done to reconcile its errors. PFR File, Tab 1 at 4 . He contends , moreov er, that he
has been prejudiced because OPM has been delaying the proceedings, appears to
be using rescission to deal with staff shortages and avoid respon ding to his
discovery requests, and can now take however long it wants to issue a new final
determina tion. Id. at 5-6.
¶8 We have considered the appellant’s arguments ; however, the Board lacks
the autho rity to order OPM to process a request for reconsideration within a
certain period of time. See McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70 , 74-75, aff’d , 40 F.3d 1250 (Fed. Cir. 1994) (Table). Further, the
Board ’s jurisdiction is limited to those matters over which it has been given
jurisdi ction by statute or regulation , and the Board is without authority to broaden
or narrow its appellate jurisdiction through the exercise of inherent power. Id.
at 73. In general, the Board has jurisdiction over OPM determ inations affecting
an appellant’ s rights or interests under the retirement system only after OPM has
issued a final decision ; that is, a reconsideration decision. Id. at 73 -74. The
Board has recognized limited exceptions to this general rule whe n OPM has, in
effect, refused to issue a reconsideration decision . Id. at 74; see, e.g., Okello v.
Office of Personnel Management , 120 M.S.P.R. 498 , ¶ 15 (2014) (finding that
OPM’ s failure to act for 6 years constituted an appealable administrative action as
the appellant diligently sought a final decision during that time period to no
avail ); Garcia v. Office of Personnel Management , 31 M.S.P.R. 160 , 161 (1986)
(stating that the Board may assert jurisdiction over a retirement appeal in the
absence of a reconsideration decision whe n OPM improper ly fai ls to respond to
the appellant’ s repeated requests for a decisio n on his retirement application).
¶9 Under the present circumstances, we find that such an exception does not
apply . See McNeese , 61 M.S.P.R . at 71-74 (finding a 16 -month delay by OPM in
issuing a reconsideration decision insufficient to confer Board jurisdiction ).
However, after OPM issues a new reconsideration decision, the appellant may file
a new appeal with the appropriate Board regional office if he disagrees with that
5
decision . Any future appeal must be filed within the time limits set forth in the
Board’s regulations. See 5 C.F.R. § 1201.22 (b). Alternatively, he may refile the
appeal if he believes that OPM refuses to issue such a decision.
¶10 Accordingly, we affirm the i nitial decision, dismissing the appeal for lack
of jurisdiction.
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 o ffer 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 ru le regarding which cases fall within their
jurisdiction. If you wish to seek 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 with in the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about wh ether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in a ny matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20 439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informa tion regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlaw ful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), with in 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
7
you do, then you must file with the 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 li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discriminat ion claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this dec ision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Was hington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for th e Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide f or Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdict ion.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COOGAN_THOMAS_D_DC_831M_17_0400_I_1_FINAL_ORDER_1995536.pdf | 2023-01-23 | null | DC-831M | NP |
3,747 | https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_5_ORDER_ON_STAY_EXTENSION_REQUEST_1995539.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. ZERINA SPALD ING,
Petitioner,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CB-1208 -22-0016 -U-5
DATE: January 23, 2023
THIS STAY ORDER IS N ONPRECEDENTIAL1
Julie R. Figueira , Esquire, Malvina Winston , Esquire, and Paul David
Metcalf, Jr. , Esquire, Washington, D.C., for the petitioner.
Corlie McCormick, Jr. , Esquire, Crofton, Maryland, for the relator .
Ralph C. Conte , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(A), the Office of Special Counsel (OSC)
reque sts an extension of the previously granted stay of the proposed removal
issued by the Department of the Treasury (agency) while OSC completes its
investigation and legal review of the matter and determines whether to seek
corrective action . For the reason s discussed below, OSC’s request is GRANTED.
BACKGROUND
¶2 On July 28, 2022, Member Limon granted OSC’s request for a 45 -day stay
of the proposed removal of Ms. Spalding based on a charge of misconduct.
Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB -1208 -22-0016 -U-1, Stay Request File (U -1 SRF), Order on Stay
Request (July 28, 2022) (U-1 Order on Stay Request) . The initial stay was
granted to permit OSC to conduct an investigation into whether the agency’s
proposal to remove Ms. Spalding was the result of a prohibited personnel practice
under 5 U.S.C. § 2302 (b)(1)(A). Id., ¶ 6. OSC subsequently requested, and the
Board granted, three extensions of the stay .2
2 By order dated September 9, 2022, the Board extended the stay through November 9,
2022. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB -1208 -22-0016 -U-2, Stay Request File (U-2 SRF), Order on Stay
Extension Request (Sept. 9, 2022) (U-2 Order on Stay Extension Request) . By order
dated November 9, 2022, the Board extended the stay through January 8, 2023. Special
Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket
No. CB-1208 -22-0016 -U-3, Stay Request File (U -3 SRF), Order on Stay Extension
Request (Nov. 9, 2022) (U-3 Order on Stay Extension Request) . By order dated
December 27, 2022, the Board extended the stay through January 23, 2023. Special
Couns el ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -
1208 -22-0016 -U-4, Stay Request File (U -4 SRF), Order on Stay Extension Request
(Dec. 27, 2022). Although the agency opposed the initial stay request and the first two
requests fo r 60-day extensions, the agency did not oppose the next request for a 14 -day
extension to accommodate holidays and filing deadlines that fell on weekends.
Compare U-1 SRF, Tab 6; U -2 SRF, Tab 3; U -3 SRF, Tab 2, with U-4 SRF Tab 1.
3
¶3 The current stay order issued on December 27, 2022, is in effect through
January 23, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the
Treasury , MSPB Docket No. CB -1208 -22-0016 -U-4, Stay Request File , Order on
Stay Extension Request , ¶ 5 (Dec. 27, 2022) . On January 9, 2023, OSC filed a
timely request to extend the stay through March 24, 2023. Special Counsel ex
rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -
22-0016 -U-5, Stay Request File (U -5 SRF), Tab 1. The agency has filed a
response in opposition to O SC’s request. U -5 SRF, Tab 2.
ANALYSIS
¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation , 74 M.S.P.R. 155 , 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. The Board may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B)(i); Special Counsel ex rel.
Waddell v. Department of Justice , 105 M.S.P.R. 208 , ¶ 3 (2007).
¶5 In requesting another 60 -day extension of the existing stay, OSC asserts
that it continues to have reasonable grounds to believe that the agency’s proposed
removal is in violation of 5 U.S.C. § 2302 (b)(1)(A) and other prohibited
personnel practices.3 Broadly speaking, the underlying circumstances involve
3 To the extent that OSC has identified other prohibited personnel practices that the
agency may have also violated with respect to Ms. Spalding, including 5 U.S.C.
§ 2302 (b)(8) and 5 U.S.C. § 2302 (b)(9)(C), the Board’s previous orders explained that
we granted OSC’s stay based solely on its allegations pertaining to 5 U .S.C.
§ 2302 (b)(1)(A). U -1 Order on Stay Request, ¶ 6 n.2; U -2 Order on Stay Extension
Request, ¶ 7 n.2; U -3 Order on Stay Extension Request, ¶ 9 n.2. The Board has also
explained that this stay is limited to Ms. Spalding’s proposed removal, and it does not
4
Ms. Spalding sending anonymous complaints of racial discrimination and other
wrongdoing to the agency ; the agency condu cting an investigation into the origins
of the complaints that included subpoenaing Internet Protocol addresses and
conducting fingerprint analysis; Ms. Spalding denying that she sent the
complaints during an interview with the agency’s Office of Inspector General ;
and the agency then citing that allegedly false denial to propose Ms. Spalding’s
removal for lack of candor. E.g., U-1 SRF, Tab 1 at 6 -12, 21, Tab 6 at 14 -31;
U-5 SRF, Tab 1 at 3 -4.
¶6 Specific to its current request for another extension, OSC cont ends that it
has diligently worked with the agency to obtain relevant documents and conduct
interviews, but these efforts remain ongoing, due to various complexities and
delays, many of which OSC attributes to the agency. For example, OSC describes
reques ting more information from the agency in October, November, and
December 2022. U-5 SRF, Tab 1 at 6. For some of these information requests,
the agency reportedly indicated that it would need until January 23, 2023, to
respond, i.e., the day on which the stay is due to expire if not further extended.
Id. at 6. For some other information requests, the agency has reportedly provided
no responsive documents, because the agency has deemed OSC’s requests too
broad, and the parties have yet to reach any resolution. Id. at 6-7. Based on these
and other surrounding circumstances, OSC argues that it has gone to great lengths
to try and finish its investigation, id. at 10 -11, but this case is inherently complex,
id. at 11-13, there have been numerous delays that are not attributable to OSC,
id. at 13-14, and further investigation is required, id. at 14 -15.
¶7 The agency opposes OSC’s request for an extension, once again arguing
that any further extension would be unreasonable and inappropriate because of
the nature of Ms. Spalding’s alleged misconduct, the sensitive position she holds,
cover any other employees that may now be the subject of OSC’s expanding
investigation. U -2 Order on Stay Extension Request, ¶ 10 n.4.
5
and what the agency describes as the unlikelihood of OSC prevailing on the
merits. U -5 SRF, Tab 2 at 2. The agency also argues that OSC has
inappropriately expanded the scope of its investigation, which has already been
ongoing for a lengthy period. Id. at 2-5. The agency asserts that the Board
should deny OSC’s request for another 60 -day extension of the stay request, or at
least limit the extension to one last extension of just 45 days. Id. at 5.
¶8 Before we turn to our disposition about OSC’s request for extension, we
take this opportunity to correct the agency’s apparen t misconstruing of the
Board’s S tay Order as it relates to the scope of OSC’s investigation . The agency
has asserted th at the Board instructed OSC to limit its investigation to the matter
for which we granted OSC’s stay request, i.e., a potential violation of 5 U.S.C.
§ 2302 (b)(1) relating to Ms. Spalding’s proposed removal . U -5 SRF, Tab 2
at 4-5, 8. But the agency is mistaken. U-1 Order on Stay Request, ¶ 6 n.2;
Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB -1208 -22-0016-U-2, Stay Request File , Order on Stay Extension
Request , ¶ 7 n.2 (Sept. 9, 2022) (U -2 Order on Stay Extension Request) ; Special
Counsel ex rel. Zerina Sp alding v. Department of the Treasury , MSPB Docket
No. CB -1208 -22-0016 -U-3, Stay Request File , Order on Stay Extension Request ,
¶ 9 n.2 (Nov. 9, 2022) (U-3 Order on Stay Extension Request) . Although our stay
and stay extensions are based solely on OSC’s re quest to investigate that alleged
prohibited personnel practice, the agency has not identified any basis to conclude
that we have the authority to limit OSC’s investigation to the same, and we are
aware of none. See 5 U.S.C. § 1214 (b)(1) (describing the Board’s limited role
regarding OSC’s investigations of prohibited personnel practices and
corresponding stay requests). In other words, we will not extend the stay that is
in place to investigate w hether the agency violated 5 U.S.C. § 2302 (b)(1) when it
proposed Ms. Spalding’s removal so that OSC can instead investigate some other
matter involving Ms. Spalding or other employees , but our sta y does not prevent
OSC from investigating other matters as it sees fit.
6
¶9 Though not briefed by the parties, our review of the relevant statutory
scheme indicates that OSC is required to investigate other allegations of
prohibited personnel practices. E.g., 5 U.S.C. § 121 2(a)(2), 121 4(a)(1)(A) ; see
Sabbagh v. Department of the Army , 110 M.S.P.R. 13 , ¶ 10 (2008) (discussing
some of OSC’s powers and functions) . To do so, the statutory scheme provide s
OSC with broa d investigatory powers such as the power to issue subpoenas , order
depositions , have access to agency records and other materials, request agency
assistance, and require an agency to turn over records or other materials.
5 U.S.C. §§ 1212 (b)(2)(A) -(B), (b) (5)(A)( i)-(iii); see 5 C.F.R. § 1810.2
(reiterating that OSC is “authorized to have timely access to all agency records
[and other materials] that relate to an OSC investigation” and explaining that
OSC “shall” report to Congress if an agency refuses to comply) . Accordingly, we
decline to con sider the scope of OSC’s investigation as a basis for declining to
extend the stay .
¶10 We now turn back to OSC’s request for an extension of the stay . As noted
in the Board’s previous order granting the initial stay in this case, the Board has
found that OSC alleged in its July 25, 2022 stay request that it has reasonable
grounds to believe that Ms. Spalding’s proposed removal was the result of a
prohibited personnel practice in violation of 5 U.S.C. § 2302 (b)(1)(A). U -1 Order
on Stay Request, ¶ 6. Viewing the record in the light most favorable to OSC,
an extension of the stay is not clearly unreasonable to allow OSC time to continue
its investigation. Special Counsel v. Small Business Administratio n, 73 M.S.P.R.
12, 13-14 (1997). The record supporting OSC’s stay extension request does not
appear to have changed materially sin ce the initial stay was granted, and so we
find it appropriate to extend the stay. See Special Counsel v. Department of
Veterans Affairs , 60 M.S.P.R. 40 , 41 (1993) (no change in the record is a factor in
favor of extending the stay).
¶11 A separate determination must be made on the length of a requested stay,
and the Board may extend the period of a stay for any per iod it considers
7
appropriate. Special Counsel ex rel. Meyers v. Department of Housing & Urban
Development , 111 M.S.P.R. 48, ¶ 17 (2009); Waddell , 105 M.S.P.R. 208 , ¶ 5. As
we previously noted, the Board has recognized that it is the intent of Congress
that stays not be extended for prolonged periods of time, and Congress has
encouraged the Board to press OSC to present any corrective action case in a
timely manner . U-2 Order on Stay Extension Request, ¶ 10; U -3 Order on Stay
Extension Request, ¶ 10; see Special Counsel v. Department of the Treasury ,
71 M.S.P.R. 419 , 421-22 (1996) (citing Special Counsel v. Federal Emergency
Management Agency , 44 M.S.P.R. 544 , 546 -47 (1990)).
¶12 On the one hand, we appreciate OSC’s explanations of its efforts to date
and the reasons for which this matter remains unresolved, at least some of which
are attributable to the agency. E.g., U-5 SRF, Tab 1 at 5-7, 10 -14. On the other
hand, we are increasin gly mindful of the length of time Ms. Spalding’s proposed
remova l has been under investigation and unresolved . The agency issued the
proposed removal in March 2022, OSC began investigating that same month, and
Member Limon first granted OSC’s stay in July 2022, but OSC has yet to request
corrective action or make any final determination about whether it will do so .
U-1 Order on Stay Request, ¶ 2; U -1 SRF, Tab 1 at 8; U -5 SRF, Tab 1 at 15,
Tab 2 at 3.
¶13 Under the particular circumstances of this case, we f ind that an additional
extension of 60 days is appropriate. However, w e encourage the agency to avoid
any further delay of OSC’s investigation and we caution OSC that time is of the
essence. See, e.g. , Special Counsel ex rel. Waddell v. Department of Jus tice,
104 M.S.P.R. 505 , ¶ 8 (2007) (discussing an already lengthy stay and granting
one more extension but warning that the Board would not be inclined to grant
another); compare Special Counsel v. U.S. Fish & Wildlife Service, Department of
the Interior , 64 M.S.P.R. 413 , 415 -16 (1994) (deny ing OSC’s fourth request for
an extension, noting that OSC had the complaint for 10 months and extensions are
not given on demand), with Special Counsel ex rel. Perfetto v. Department of the
8
Navy , 85 M.S.P.R. 454 , ¶ 15 (2000) (granting an indefinite stay extension after
OSC filed a petition for corrective action).
ORDER
¶14 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), the requested extension of the stay is
hereby GRANTED, and it is ORDERED as follows:
(1) The stay issued on July 28 , 2022, is extended through and including
March 24, 2023 , on the terms and conditions set forth in that Order;
(2) The agency shall not effect any changes in Ms. Spalding’s duties or
responsibilities that are inconsistent with her salary or grade level, or
impose upon her any requirement which is not required of other
employees of comparable position, salary, or grade level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B) and 5 C.F.R. § 1201.136 (b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before March 9, 2023 ; and
9
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before March 16, 2023 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPALDING_ZERINA_CB_1208_22_0016_U_5_ORDER_ON_STAY_EXTENSION_REQUEST_1995539.pdf | 2023-01-23 | null | CB-1208 | NP |
3,748 | https://www.mspb.gov/decisions/nonprecedential/KHENAISSER_MAZEN_SF_0752_16_0665_I_1_FINAL_ORDER_1995553.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAZEN KHENAISSER,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -16-0665 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mazen Khenaisser , Elk Grove, California, pro se.
Kevin D. Mack , Esquire, Sacramento, California, 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 initial decision, which
dismissed his appeal for lack of jurisdiction and as untimely filed . Generally, we
grant pe titions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 During the periods relevant to this appeal, the agency employed the
appellant as a GS -11 Civil Engineer . Initial Appeal File (IAF), Tab 8 at 173. In
early 2014, his supervisor issued him three “Direct Order s” setting forth required
tasks and re minding him that he was obligated to comply wi th the orders. IAF,
Tab 1 at 9-11. The appellant signed the first two orders but refused to sign the
third. Id. at 5, 9 -11. On May 21, 2014, his superviso r proposed to suspend him
for 5 days on the basis of disruptive conduct and discourteous behavior and
requested medical documentation to assess possible reasonable accommodations .
Id. at 12-15, 23-25. The appellant’s supervisor subsequently rescinded the
proposed suspension and , on June 19, 2014, proposed the appellant’s removal
based on charges of “Making A larming and Disturbing Comments and/or
Gestures to Supervisor ” and failure to follow instructions. IAF, Tab 8 at 178 -87,
429. The appellant resigned effective that same day . Id. at 173 -76.
3
¶3 After his resignation, the appellant filed a grievance challenging a number
of agency actions leading up to his resignation and alleging discrimination and
retaliation . Id. at 511-31. On August 8, 2014, t he designated agency official
issued a response, finding tha t, because the appellant had resigned by the time he
filed the grievance, he was no longer an employee exclusively represented by the
local union or covered by the collective bargaining agreement . Id. at 635 -37.
Nonetheless, the agency official considere d the appellant’s alleged violations of
the collective bargaining agreement and alleged reprisal for disclosures , found
that the agency had not violated the collective bargaining agreement or retaliated
against the appellant , and denied his request to be r einstated with a promotion or
reassignment . Id. at 637-54. T he a gency official informed the appellant that,
because allegations of discrimination are excluded from the negotiated grievance
procedure, he would not consider them in his response to the appe llant’s
grievance. Id. at 652.
¶4 The a ppellant then submitted a step -three grievance to the Office of the
Regional Director . Id. at 675-707. On October 8, 2014, the Deputy Regional
Director issued the region’s final decision on the appellant’s grievance ,
concurring with the findings on the step -two grievance, denying the appellant’s
request for reinstatement, and informing him that, if the grievance was not
resolved, the union could submit the issue to arbitration within 30 days . Id.
at 716-25. The Deputy Regional Director also informed the appellant again that
allegations of discrimination are excluded from the negotiated grievance
procedure and would not be addressed by his response. Id. at 721 . The union did
not invoke arbitration on the app ellant’s behalf .2 Id. at 16.
2 After the union declined to invoke arbitration on the appellant’s behalf, he filed two
unfair labor practice complaints with the Federal Labor Relations Authority (FLRA)
regarding the handling of h is grievance. IAF, Tab 8 at 784-86. The FLRA dismissed
both complaints. Id. at 775 -77. He then filed an equal employment opportunity
complaint alleging that the local union president discriminated and retaliated against
him when he refused to assign him union representation. IAF, Tab 1 at 59 -68. In a
4
¶5 On July 31, 2016, the appellant filed an appeal with the Board alleging that
the union president illegally denied him arbitration and that the agency had
discriminated and retaliated against him by , among other things, subjec ting him
to a hostile work environment, giving him “Direct Orders ,” proposing his 5 -day
suspension, removi ng him from a specific project, request ing medical
documentation , not selecting him for a position, “stripping [him] of union
entitlements, such as ar bitration,” and “commi t[ing] the worst violation of
5 U.S.C. § 7121 imaginable when they refused to negotiate on discrimination.”
IAF, Tab 1 at 4 -8. In an order on jurisdiction, the administrative judge explained
that the Board lacked jurisdiction over many of the appellant’s allegations but
that, insofar as he was raising claims of involuntary resigna tion and
whistleblower reprisal, the Board may have jurisdiction over his appeal . IAF,
Tab 3 at 2 -3. The administrative judge thus notified the appellant of the
applicable law and his burden of pro ving Board jurisdiction over an involuntary
resignation appeal and an individual right of action (IRA) appeal based on
whistleblower reprisal , and ordered him to file evidence and argument amounting
to a nonfrivolous allegation of jurisdiction . Id. at 5-12.
¶6 In a separate order on timelin ess, the administrative judge explained that,
even if the Board had jurisdiction over the appellant’s alleged involuntary
resignation claim, it appeared to be untimely filed . The administrative judge
ordered the appellant to submit evidence and argument establishing that his
appeal was timely filed or that good cause existed for the untimely filing. IAF,
Tab 4 at 1 -4.
final agency decision, the agency dismissed the complaint for failure to state a claim.
Id. at 109 -13. The appellant appealed the final agency decision to district court, which
adopted the magistrate’ s findings and recommendation dismissing the appellant’s
amended complaint , which had raised additional allegations of discrimination and
reprisal by agency officials, for lack of jurisdiction and for failure to state a claim .
IAF, Ta b 8 at 150 -55, 164 -66. The U.S. Court of Appeals for the Ninth Circuit later
affirmed the district court’s decision . Khenaisser v. Zinke , 693 F. App’x 608 (9 th Cir.
2017).
5
¶7 In response to these orders , the appellant reiterated his alleg ations regarding
discrimination and retaliation, alleged numerous agency violations of the merit
systems principles, and argued that his appeal was timely filed under 5 U.S.C.
§ 7121 because he filed the grievance within 30 days of his resignation on
July 18, 2014. IAF, Tab 5 at 4 -13.
¶8 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal. IAF, Tab 10, Initial Decision (ID). She
found that the appellant’s alleged involuntary resignation was outside the Board ’s
jurisdiction and untimely filed by more than 2 years and that his timely filed
grievance did not render the current appeal timely filed. ID at 10 -22. She further
found that the appellant failed to show that he had exhausted his administrative
remedy with the Office of Sp ecial Counsel (OSC) and, therefore, did not establish
jurisdiction over his IRA appeal. ID at 23. The administrative judge additionally
found that th e Board lacked jurisdiction over the various other agency actions
challenged by the appellant, his discri mination and retaliation claims, and his
challenges to the grievance process and decisions. ID at 23 -27.
¶9 The appellant ha s filed a petition for review of the initial decision . Petition
for Review (PFR) File, Tab 1 at 4-22. The agency has not submitted a response.
ANALYSIS
The administrative judge correctly determined that the appellant failed to
establish Board jurisdiction over any of the alleged agency or union actions.
¶10 As noted above, the appellant alleged that his resignation was involuntary
and challenged numerous agency actions, including the direct orders from his
supervisor, the proposed 5 -day suspension, the agency’s request for medical
documentation, his removal from a specific project, and his nonselection for a
project manager position. I AF, Tab 1 at 4 -8. He also argued that the agency and
the union violated various merit systems principles and discriminated and
retaliated against him. Id.; IAF, Tab 5 at 4 -13. In the initial decision, the
administrative judge considered each of these al legations and concluded that the
6
Board lacked jurisdiction to review such claims and that the appellant’s
involuntary resignation claim was untimely filed. ID at 22 -27. The appellant
challenges these findings on review . PFR File, Tab 1 at 4 -22.
¶11 The Boar d does not have jurisdiction to address all matters that are alleged
to be incorrect or unfair. Miller v. Department of Homeland Security ,
111 M.S.P.R. 325 , ¶ 14 (2009), aff’d , 361 F. App’ x 134 (Fed. Cir. 2010). Rather,
the Board adjudicates only those actions for which a right of appeal has been
granted by law, rule, or regulation. Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985).
¶12 Generally, the Board lacks the authority to review an employee’ s decision
to resign , which is presumed to be a voluntar y act. Brown v. U.S. Postal Service ,
115 M.S.P.R. 609 , ¶ 9, aff’d, 469 F. App ’x 852 (Fed. Cir. 2011). However, an
appellant may overcome the presumption of voluntariness by showing that his
resignation was the product of misinformation or deception by the agency, or of
coercive acts by the agency, such as intolerable working conditions or the
unjustified t hreat of an adverse action. SanSoucie v. Department of Agriculture ,
116 M.S.P.R. 149 , ¶ 14 (2011). The Board addresses al legations of
discrimination and reprisal in connection with an alleged involuntary retirement
only insofar as those allegations relate to the issue of voluntariness and not
whether they would establish discrimination or reprisal as an affirmative defense.
Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 20 (2007). If the
employee makes a nonfrivolous allegation of jurisd iction, i.e., an allegation that,
if proven, could establish the Board ’s jurisdiction, he is entitled to a hearing at
which he must prove jurisdiction by a preponderance of the evidence. Id., ¶ 18.
¶13 In cases such as this one, when the employee appears to a llege that the
agency took actions that made working conditions so intolerable that he was
driven to an involuntary resignation , the Board will find an action involuntary
only if the employee demonstrates that the agency engaged in a course of action
that made working conditions so difficult or unpleasant that a reasonable person
7
in his position would have felt compelled to resign . Id., ¶ 20. The doctrine of
coerced involuntariness is “a narrow one” and does not apply if the emplo yee
resigns or retires be cause he “does not want to accept [measures] that the agency
is authorized to adopt, even if those measures make continuation in the job so
unpleasant . . . that he feels that he has no realistic option but to leave.” Staats v.
U.S. Postal Service , 99 F.3d 1120 , 1124 (1996). “[T]he fact than an employee is
faced with an unpleasant situation or that his choice is limited to two unat tractive
option s does not make [his] decision any less voluntary.” Id. The touchstone of
the “voluntariness” analysis is whether, considering the totality of the
circumstances, factors operated on the employee’ s decision -making process that
deprived him of freedom of c hoice. Vitale , 107 M.S.P.R. 501 , ¶ 19.
¶14 Here, the administrative judge found that the appellant failed to
nonfrivolously allege that the direct orders, the agency’s decision to remove him
from a specific project, the proposed 5 -day suspension, the re quest for medical
documentation, and the proposed removal constituted improper agency acts that
created intolerable working condition s and forced him to resign . ID at 18 -21.
She also found that the appellant failed to nonfrivolously allege that the agency
knew that it could not substantiate the proposed re moval so as to render his
resignation involuntary on the basis of the unjustifie d threat of an adverse action.
ID at 21.
¶15 On review, the appellant argues that his resignation was involuntary
because the agency was going to remove him and denied his request for a
reassignment. PFR File, Tab 1 at 5. He also asserts that the reprisal , direct
orders, “bogus suspensions,” and request for medical documentation were
“enough to make the employee lose the desire to return” and that the reprisal was
only going to get worse. Id. These vague and conclusory allegations, however,
provide no ba sis to disturb the administrative judge’s well -reasoned findings on
this issue, and we discern no basis to disturb them. See Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the
8
administrative judge’ s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Heal th & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶16 The administrative judge also found that the agency provided the appellan t
notice of his Board appeal rights, including that he must file within 30 days of his
alleged involuntary resignation, ID at 11 -14, and that his involuntary resignation
appeal was nonetheless untimely filed by more than 2 years without good cause
shown, ID at 15 -17. On review, the appellant argues that his appeal was timely
filed because he filed his grievance within 30 days of the “proposed action” and
because there is “no time limitation set forth by 5 U.S.C. § 7121 .” PFR File,
Tab 1 at 5. As correctly explained by the administrative judge, however, the
appellant’s timely filed grievance does not affect the timeliness of the instant
appeal , and, as discussed below, there is no “final” arbitration decision deciding a
grievance of an otherwise appealable action that may be reviewed by the Board
pursuant to 5 U.S.C. § 7121 (d) at issue i n this appeal. ID at 15. Accordingly, the
appellant’s arguments on review provide no basis to disturb the administrative
judge’s timeliness determination, and we agree that the appellant’s alleged
involuntary resignation appeal is untimely filed without good cause shown.
¶17 Additionally , we agree with the administrative judge’s determination s that
the Board lacks jurisdiction over the various other agency actions alleged by the
appellant , such as his 5 -day suspension and nonselection and actio ns taken by th e
union officials , and that, absent an otherwise appealable action, the Board lacks
jurisdiction to review his allegations of merit systems principle violations,
discrimination, and equal employment opportunity retaliation. See, e.g. , 5 U.S.C.
§ 7512 (enumerating the actions that are directly appealable to the Board under
chapter 75); Cruz v. Department of the Navy , 934 F.2d 1240 , 1245 -46 (Fed. Cir.
1991) (holding that, absent an otherwise appealable action, the Board lacks
jurisdiction to consider allegations of discrimination and retaliation); Greenspan
v. Department of Veterans Affairs , 94 M.S.P.R. 247 , ¶ 21 (2003) (explaining that
9
the Board lacks the authority to review the working s and alleged unfairness of t he
negotiated grievance procedure) , reversed on other grounds , 464 F.3d 1297 (Fed.
Cir. 2006) ; Neal v. Department of Health & Human Services , 46 M.S.P.R. 26 , 28
(1990) (stating that m erit system principles do not provide an independent source
of Board jurisdiction); Berry v. Departmen t of Justice , 31 M.S.P.R. 676 , 678
(1986) (holding that the Board lacks the authority to determine whether an action
constitutes an unfair labor pr actice). Finally , although the appellant does not
appear to challenge this finding on review, we agree with the administrative
judge’s determination that the appellant failed to establish jurisdiction over his
appeal as an I RA appeal because he failed to show exhaustion before OSC. See
Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶¶ 7-8 (2011) .
The administrative judge correctly determined that the Board may not review the
grievance decisions under 5 U.S.C. § 7121 (d).
¶18 The appellant also argues that the Board should review the grievance
decision under 5 U.S.C. § 7121 (d).3 The Board typically has jurisdiction to
review a final grievance or arbitration decision unde r 5 U.S.C. § 7121 (d) wh en
the following conditions are met : (1) the subject matter of the grievance is one
over which the Board has jurisdictio n; (2) the appellant either (i) raised a claim of
discrimination in connection with the underlying action under 5 U.S.C.
§ 2302 (b)(1) in the negotiated grievance procedure, or (ii) raises a claim of
discrimination in connection with the und erlying action under 5 U.S.C.
§ 2302 (b)(1) for the first time with the Board if such allegations could not be
raised in the negotiated grievance procedure; and (3) a “final decision ” has been
issued. Jones v. Department of Energy , 120 M.S.P.R. 480 , ¶ 8 (2013), aff’d ,
589 F. App ’x 972 (Fed. Cir. 2014) ; 5 C.F.R. § 1201.155 (a)(1), (c) . In the initial
decision, the administrative judge found that the Board lacked jurisdiction under
3 Based on our findings, we need not reach the issue of whether the appellant’s election
to pursue the se matters under the negotiated grievance procedure precluded him from
also challenging them to the Board.
10
5 U.S.C. § 7121 (d) to review the grievance decision because the appellant was not
appealing a final arbitration decision and because he failed to identify any
otherwise appealable action challenged in the grievance. ID at 26. The appellant
generally challenges this finding on review. PFR File, Tab 1 at 4-6.
¶19 As discussed above , the appellant has not shown that the agency subjected
him to an otherwise appealable action . ID at 10-22, 24-26. Thus, we agree with
the administrative judge’s finding that the fir st condition for Board review of an
arbitration decision under section 7121(d) has not been met. Moreover , the
appellant has not shown that the third condition —a “final decision” as
contemplated by section 7121(d) —has been met .
¶20 When the negotiated grievance procedure provides for arbitration as the last
resort, the “final decision” appealabl e to t he Board under 5 U.S.C. § 7121 (d) is
the arbitrator’s decision. Parks v. Smithsonian Institution , 39 M.S.P.R. 346 , 349
(1988). Here , Article 10 of the collective bargaining agreement provides that,
“[i]f the decision on a grievance processed under the negotiated grievance
procedure is not acceptable, the issue may be submitted to ar bitration within
thirty (30) days following receipt of the decision by the aggrieved Party.” IAF,
Tab 8 at 40. Thus, the collective bargaining agreement provides for arbitration as
the last resort. Id. Here , however, the union did not invoke arbitration on the
appellant’s behalf after the agency issued a decision on his step -three grievance ,
and, therefore, a final arbitration decision subjec t to Board review under
section 7121(d) was never rendered in this case . Id. at 16, 716-25. Although the
appellant argues that the union illegally denied him arbitration, the union’s
decision not to pursue arbitration on his behalf does not render the agency’s
decision on the step -three grievance “final ” as to qualify for Board review unde r
section 7121(d). See Farmer v. Merit Systems Protection Board , 17 F.3d 1444
(Fed. Cir. 1994) (Table ) (finding that the union’s decision to withdraw its request
for arbitration did not render the decision at step three “final” such that the
11
appellant cou ld appeal t he decision t o the Board under section 7121(d) ).4 Thus,
as the administrative judge correctly determin ed, the appellant did not receive a
final arbitration decision subject to the Board’s review under section 7121(d).
¶21 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 The Board may rely on unpublished Federal Circuit decisions wh en, as here, it finds
the court’ s reasoning persuasive. Mauldin v. U.S. Postal Servi ce, 115 M.S.P.R. 513 ,
¶ 12 (2011).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
13
you do, then you must file with the 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
with the EEOC no later than 30 calendar days after your representative 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
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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.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.
6 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.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor wa rrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KHENAISSER_MAZEN_SF_0752_16_0665_I_1_FINAL_ORDER_1995553.pdf | 2023-01-23 | null | SF-0752 | NP |
3,749 | https://www.mspb.gov/decisions/nonprecedential/LAWRENCE_LANCE_A_DE_0752_15_0065_I_2_FINAL_ORDER_1995587.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LANCE A. LAWRENCE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DE-0752 -15-0065 -I-2
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Dean L. Lynch , Esquire, and Zachary A. Wiest , Tucson, Arizona, 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 . On petition for review, the appellant challenges 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 regarding the agency’s 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 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 On petition for review, the appellant also argue s that the administrative judge’s denial
of his motion for an adverse inference for spoliation of evidence constituted an abuse of
discretion . Petit ion for Review File, Tab 3 at 24-25. We find that the administrative
judge’s ruling did not constitute an abuse of discretion. See Leseman v. Department of
the Army , 122 M.S.P.R. 139 , ¶ 6 (2015) (recognizing that, absent an abuse of discretion,
the Board will not reverse an administrative judge’s d etermination regarding sanctions).
In their competing arguments, both parties suggested that an appropriate standard would
require that the party seeking an adverse inference for spoliation establish the
following: (1) the party having control over the e vidence had an obligation to preserve
it at the time it was destroyed; (2) the record was destroyed with a culpable state of
mind; and (3) the destroyed evidence was relevant to the party’s claim or defense such
that a reasonable trier of fact could find t he destroyed evidence would support that
claim or defense. Lawrence v. Department of Homeland Security , MSPB Docket No.
DE-0752 -15-0065 -I-2, Refiled Appeal File , Tab 28 at 5, Tab 32 at 4. Under the plain
language of that standard or even a lesser standar d in which bad faith is not required,
there must be some destruction of evidence. Cf. Kirkendall v. Department of the Army ,
573 F.3d 1318 , 1325 -27 (Fed. Cir. 2009) (finding that adverse inferences were
warranted, even without a finding of bad faith, when an agency violated its own policy
by destroying documents relevant to an applicant’s appeal). While the appellant
suggests that the agency’s ac tions are analogous to the destruction of evidence, we
disagree.
3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not repr esent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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 particula r case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with th e district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repre sentation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial p etition 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 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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this de cision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of parti cular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court o f Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Circ uit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | LAWRENCE_LANCE_A_DE_0752_15_0065_I_2_FINAL_ORDER_1995587.pdf | 2023-01-23 | null | DE-0752 | NP |
3,750 | https://www.mspb.gov/decisions/nonprecedential/ADELIZZIO_LASKER_SUSAN_M_NY_3443_16_0301_I_1_FINAL_ORDER_1995604.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN M. ADELIZZIO -LASKER,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
NY-3443 -16-0301 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan M. Adelizzio -Lasker , Newfane, New York, pro se.
Matthew C. Landreth , Buffalo, 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 her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the app eal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’ s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On September 28, 2012, the agency proposed removing the appellant from
her GS-11 Entry Specialist position with the agency’s Office of Customs and
Border Protection (CBP) in Buffalo, New York , based on four charges of
misconduct . Initial Appeal File (IAF), Tab 14 at 84 -92. The appellant and her
representative responded orally to the notice of proposed removal o n February 7,
2013. Id. at 96 -102. During the oral reply, the appellant ’s representative asked
the deciding official to consider demoting the appellant to her previous position
under a last chance agreement (LCA) in lieu of removal. Id. at 107 -09, 118 -20.
¶3 After considering the oral reply and the record evidence , the deciding
official issued a decision letter dated August 23, 2013, sustaining three of the
charges and the penalty of removal. Id. at 124 -27. The removal was never
effected, however. Instea d, on September 11, 2013, the appellant and the agency
entered into an LCA, in which the appellant agreed to a demotion to a GS -7 CBP
Technician position in exchange for the agency’s agreement to hold the removal
in abeyance. Id. at 129 -31. The appellant’s demotion became effective on
3
September 2 2, 2013. Id. at 133. On August 2 3, 2014, the appellant separated
from the agency under a disability retirement. Id. at 135.
¶4 On September 3, 2016, t he appellant filed a Board appeal and requested a
hearing . IAF, Tab 1 at 2. The appellant alleg ed that the agency provided the
Office of Workers’ Compensation Programs (OWCP) erroneous information
about her pay grade and the date of the onset of her disability , and that, as a
result, the amount of her d isability compensation benefits was less than it should
be. Id. at 6. More specifically, the appellant claimed that her disability
compensation benefits should have been based on her GS-11 pay rate instead of
her GS-7 pay rate . Id.
¶5 The administrative judge issued an order notifying the appellant of her
jurisdictional burden and explaining that an employing agency’s submission of
erroneous information to OWCP is not appealable to the Board . IAF, Tab 9 at 1;
see Mavronikolas v. U.S. Postal Service , 39 M.S.P.R. 442, 445 (1989). The
administrative judge directed the appellant to show that the Board has jurisdiction
over her app eal. IAF, Tab 9 at 2.
¶6 In response, the appellant alleged that the agency demoted her based on her
uniformed service and , therefore , the Board has jurisdiction over this appeal
pursuant to the Uniformed Services Employment and Reemployment Rights Act
of 19 94 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) .2 IAF,
Tab 12 at 4 -5. The administrative judge explain ed that the term “uniformed
service” in USERRA refers to military service, not the wearing of a uniform
while one is performing duties in a civilian position . IAF, Tab 17 at 1-2. The
2 USERRA provides, in relevant part, that a person who has performed service in a
unformed service “shall not be denied . . . retention in employment . . . on the basis of ”
that performance of servic e. 38 U.S.C. § 4311 (a). To establish the Board’s jurisdiction
over a USERRA discrimination claim arising under 38 U.S.C. § 4311 (a), an appellant
must allege, inter alia, that she performed duty or has an obligation to perform duty in a
uniformed service of the United States. Wilson v. Department of the Army ,
111 M.S.P.R. 54 , ¶ 8 (2009) .
4
administrative judge found that USERRA d oes not appear to apply in this a ppeal
because the record indicates that the appellant has not performed military service .
Id. at 2; see McAfee v. Social Security Administration , 88 M.S.P.R. 4 , ¶ 12 (2001)
(stating that under USERRA, the Board has jurisdiction over the appeal of any
person alleging discrimination in F ederal employment on account of prior
military service). The administrative judge provided the ap pellant another
opportunity to prove jurisdiction. IAF, Tab 17 at 2.
¶7 In response, the appellant asserted that the Board has jurisdiction over this
appeal as an individual right of action (IRA) appeal pursuant to 5 U.S.C. § 1221
because the agency retaliated against her for filing a formal whistleblowing
complaint and a “congressional” disclosing dishonest and illegal activities at the
CBP Port Office in Bu ffalo, New York. IAF, Tab 18 at 4, 7. The administrative
judge explained that the Board has jurisdiction over an IRA appeal if, inter alia,
the appellant exhausts her administrative remedies with the Office of Special
Counsel (OSC). IAF, Tab 19 at 1. The administrative judge found that this
requirement was not met here because the appellant did not first file a complaint
with OSC. Id. at 2. In that regard, the administrative judge noted that, when the
appellant filed her appeal, she indicated on her a ppeal form that she had not file d
a whistleblowing complaint with OSC . Id.; IAF, Tab 1 at 4. The administrative
judge provided the appellant a nother opportunity to address the jurisdictional
issue. IAF, Tab 19 at 1.
¶8 The appellant submitted several documents in response to the order ;
however, n one of those documents address ed the jurisdictional issue . IAF,
Tab 20.
¶9 Without holding the requested hearing, the administrative judge issued an
initial decision that dismissed the appeal for lack of jurisdic tion. IAF, Tab 25,
Initial Decision (ID) at 1, 5. For the reasons discussed above, the administrative
judge found that the Board does not have jurisdiction over this matter as either a
USERRA appeal or an IRA appeal, and that, even if the agency submitte d
5
erroneous information to OWCP, the Board is not authorized to provide a remedy.
ID at 5.
¶10 The appellant has filed a petition for review and supplements to the
petition. Petition for Review (PFR) File, Tabs 1 -3. The agency has filed a
response in opposi tion to the petition.3 PFR File, Tab 5.
ANALYSIS
The Board need not consider the documents the appellant submits on review .
¶11 The appellant submits numerous documents on review. PFR File, Tab 1
at 9-22, Tab 3 at 4 -43. The Board generally will not consider evidence submitted
for the first time with a petition for review absent a showing that it was
unavailable before the record closed despite due diligence. Avansino v. U.S.
Postal Service , 3 M.S.P.R. 211 , 214 (1980). 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. Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). To constitute new a nd
material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed. Grassell v. Department of Transportation , 40 M.S.P.R. 554 ,
564 (1989).
¶12 All of the documents that the appellant submits on review are either undated
or significantly predate the close of the record, and the appellant h as made no
showing that any of those documents were unavailable before the close of the
record despite her due diligence. Therefore, the Board need not consider any of
the documents that the appellant submits on review. Avansino , 3 M.S.P.R. at 214.
3 In its response, the agency reiterates its argument from below that, even if the Board
has jurisdiction over this appeal, the appeal was not ti mely filed. PFR File, Tab 5 at 9
n.1; IAF, Tab 24 at 9 n.2. Because the Board does not have jurisdiction over this
appeal, we need not address the timeliness issue . See Tardio v. Department of Justice ,
112 M.S.P.R. 371 , ¶ 30 (2009) , abrogated on other grounds by Bean v. U.S. Postal
Service , 120 M.S.P.R. 397 (2013) .
6
The B oard need not consider the appellant’s new claim on review.
¶13 The appellant does not challenge, and we discern no reason to disturb, the
administrative judge’s explained finding that the Board does not have jurisdiction
over her appeal as either a USERRA app eal or an IRA appeal. See generally PFR
File, Tab 1; ID at 5. Instead, for the first time on review, the appellant argues th e
merits of the charges upon which her removal was based and contends that an
analysis of the factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 306 (1981) , demonstrates that she should not have been remov ed
or demoted . PFR File, Tab 1 a t 4-7.
¶14 The Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party ’s due diligence. Banks v. Department
of the Air For ce, 4 M.S.P.R. 268 , 271 (1980). The appellant has made no such
showing. Although the appellant contends on review that she “just learned” about
the Douglas factors, PFR File, Tab 1 at 4, the record demonstrates otherwise.
The appellant previously was notified of the Douglas factors in an August 2, 2011
decision letter sustaining her 14 -day suspension for misconduct. IAF, Tab 14
at 80-81. Moreover, the appellant’s representative repeated ly cited the Douglas
factors during the appellant’s oral reply to her proposed removal . Id. at 101, 104,
106. Accordingly , we do not consider the appellant’s new argument on review4
and we find tha t the administrative judge properly dismissed this appeal for lack
of jurisdiction .
4 If the appellant wishes to pursue her claim that she should not have been removed or
demoted, sh e may file a new appeal of th ose action s with the Board’s regional or field
office. The appellant, though, will be responsible for establishing jurisdiction over any
such appeal and for showing either that the appeal is timely filed or that there is good
cause for any delay. See Link v. Department of the Treasury , 51 F.3d 1577 , 1581 (Fed.
Cir. 1995) (stating that the Board generally lacks jurisdi ction over adverse actions when
the appellant has waived his appeal rights in an LCA); 5 C.F.R. § 1201.22 (b)-(c)
(regulatory timeliness requirements for Board appeals).
7
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the n ature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appea l rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in th e dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for t he Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
9
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Cir cuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any atto rney will accept representation in a given case.
6 The 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
Contact information for the courts of appeals can be 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 | ADELIZZIO_LASKER_SUSAN_M_NY_3443_16_0301_I_1_FINAL_ORDER_1995604.pdf | 2023-01-23 | null | NY-3443 | NP |
3,751 | https://www.mspb.gov/decisions/nonprecedential/BENTON_FLORES_REDALE_DC_1221_13_0522_B_2_FINAL_ORDER_1995607.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REDALE BENTON -FLORES,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -13-0522 -B-2
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alexis Tsotakos , Esquire, and Christopher H. Bonk , Esquire, Silver Spring,
Maryland, for the appellant.
Maxwell Selz , APO, AE, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Le avitt , 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 remand initial decision,
which denied her request for corrective action in this individual right of action
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
(IRA) appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consisten t with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the re cord closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant filed this IRA appeal, alleging that the agency retaliated
against her for protected whistleblowing. Benton -Flores v. Department of
Defense , MSPB Docket No. DC -1221 -13-0522 -W-1, Initial Appeal File (IAF),
Tab 1. The administrative judge dismissed the IRA appeal for lack of
jurisdiction. I AF, Tab 8, Initial Decision . On review, the Board reversed and
remanded for adjudication on the merits. Benton -Flores v. Department of
Defense , 121 M.S.P.R. 428 (2014).
¶3 In the Board’s Opinion and Order, we found that the appellant exhausted
disclosures concerning the following bef ore the Office of Special Counsel (OSC):
(1) a teacher’s aide was wrongly taken away from the appellant’s classroom for
training; (2) a speech teacher was not providing services to her students as
required by their individualized education program; (3) st aff mistreat ed students;
(4) a staff member endangered students by bringing a razor into the classroom;
(5) a staff member engaged in abusive and threatening behavior; (6) a staff
member performed an illegal search of her students’ belongings; and (7) a st aff
3
member spread rumors around the school about the appellant. Id., ¶ 7. Of those,
the Board found that the appellant presented nonfrivolous allegations concerning
Disclosures 3 -5. Id., ¶¶ 8 -11. The Board also found that the appellant
nonfrivolously a lleged that Disclosures 3 -5 were a contributing factor in her
June 2012 termination, a personnel action which also was properly exhausted
with OSC. Id., ¶¶ 12 -14.
¶4 On remand, the administrative judge developed the rec ord and planned for a
hearing. Benton -Flores v. Department of Defense , MSPB Docket No. DC-1221 -
13-0522 -B-1, Remand File (RF), Tab 37. Because of scheduling conflicts with
witnesses, the administrative judge dismissed the case without prejudice. RF,
Tab 38. After refiling the case , the appellant decided she did not want to pursue
the hearing and , instead, requested a decision on the written record.
Benton -Flores v. Department of Defense , MSPB Docket No. DC -1221 -13-0522 -
B-2, Refiled Remand File (B -2 RF), Tab 18 at 1. The administrative judge then
issued a remand initial decision, denying the appellant’s request for corrective
action. B -2 RF, Tab 27, Remand Initial Decision (RID) at 2. She found that the
appellant failed to meet her burden of proving that the disclosures identified by
the Board for further adjudication were protected. RID at 6 -19. The appellant
has filed a peti tion for review challenging the remand initial decision .
Benton -Flores v. Department of Defense , MSPB Docket No. DC-1221 -13-0522 -
B-2, Remand Petition for Review (RPFR) File, Tab 3. The agency has filed a
response and the appellant has replied. RPFR File, Tabs 5-6.
¶5 To establish a prima facie case of whistleblower reprisal in this case, the
appellant had the burden of proving, by preponderant evidence, that: (1) she
made a protected disclosure under 5 U.S.C. § 2302 (b)(8); and (2) the protected
disclosure was a contributing factor in an agency’s personnel action.
Benton -Flores , 121 M.S.P.R. 428 , ¶ 5. To establish that she made a protected
disclosure under 5 U.S.C. § 2302 (b)(8), the appellant need not prove that the
matter disclosed actually established one of the categories of wrongdoing listed
4
under section 2302(b)(8)(A); rather, she must show that the matter disclosed was
one which a reasonable person in her position would believe evidenced any of the
situations specified in 5 U.S.C. § 2302 (b)(8). Webb v. Department of the Interior ,
122 M.S.P.R. 248 , ¶ 6 (2015); Benton -Flores , 121 M.S.P.R. 428 , ¶ 8. The proper
test for determining whether an employee had a reasonable belief that her
disclosures were protected is whether a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by the employee could
reasonably conclude that t he actions evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302 (b)(8).
Benton -Flores , 121 M.S.P.R. 428 , ¶ 8.
The appellant failed to prove that Disclosure 3 was protected.
¶6 On review, the appellant first argues that the administrative judge
improperly dismisse d portions of Disclosure 3 because they were conveyed
orally , rather than in writing. RPFR File, Tab 3 at 10 -11 (referencing RID at 9).
We disagree. As will become clear in our discussion below, the argument
misrepresents the administrative judge’s find ings; she did not find any disclosure
unprotected because it was oral. The appellant separately reasserts that she
reasonably believed Disclosure 3, about staff mistreating students, was protected.
RPFR File, Tab 3 at 11 -13. She argues that the administ rative judge mistakenly
interpreted Board precedent in finding otherwise. Id. at 12 -13 (referencing RID
at 8-11; Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶¶ 6 -7 (2016);
El v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 10 n.11 (2015)). Again, we
disagree.
¶7 As discussed in both the Board’s Opinion and Order and the remand initial
decision, Disclosure 3 actually involves several discrete incidents.
Benton -Flores , 121 M.S.P.R. 428 , ¶¶ 7, 9; RID at 8 -14; IAF, Tab 5 at 8, 14 -15.
The first, which we will call Disclosure 3(a), involved a teacher’s aide reportedly
dragging a student to isolation. IAF, Tab 5 at 14. The second, Disclosure 3(b),
5
involved a teacher’s aide reportedly pushing a student. Id. at 15. And the third,
Disclosure 3(c), involved the restraint of a student. Id. at 8.
¶8 In the Board’s Opinion and Order, we observed that while the appellant had
not cited a particular law, rule, or regulation implicated by her alleged
disclosures, the agency’s regulations clearly mandate the safety and security of
staff and students in agen cy-run schools. Benton -Flores , 121 M.S.P.R. 428 , ¶ 10.
We found that the appellant nonfrivolously alleged that a disinteres ted observer
with knowledge of the essential facts known to and readily ascertainable by the
appellant could reasonably conclude that the actions described in Disclosures 3 -5
evidenced a violation of law, rule, or regulation. Id. In reaching that conclus ion,
we relied on the appellant’s OSC complaint and her disclosures described therein .
Id., ¶ 8.
Disclosure 3(a)
¶9 In her OSC complaint, the appellant described Disclosure 3(a), an oral
disclosure to her Assistant Principal, as follows:
That [an aide] did drag my then 3 year old [student] out of [the]
center and placed him in “isolation” seated in front of a glass
window in the back of the room, with the blinds closed, and the
child’s back turned away from rest of the classroom. Isolatin g a
child in this manner was outlawed in the [USA] in public schools
back in the 1960’s. The child cried profusely, and I considered this
treatment of physically dragging the child out of [the] reading center
to be abusive. (This was witnessed by [anothe r aide], who was
reading a story to students at the time, while I prepared the snacks).
IAF, Tab 5 at 14. By contrast, during the remand proceedings, in lieu of
testimony about Disclosure 3(a), the appellant submitted a sworn affidavit in
which she provid ed the following:
In or about October 2011, I verbally disclosed to [the] Assistant
Principal at Aviano Elementary School, that I witnessed [an aide]
physically drag a three -year old [particular student] out of the
reading center and into isolation away fr om the other students. I
informed [the Assistant Principal] that [the aide’s] actions were
improper and dangerous.
6
B-2 RF, Tab 22 at 108.
¶10 Aside from the two aforementioned statements, the appellant has not
directed us to any evidence corroborating Disclos ure 3(a) or providing further
details about it.2 RPFR File, Tab 3 at 6. However, we did locate a deposition
where in the alleged recipient of this disclosure could not recall the appellant ever
disclosing that the aide improperly isolated or pushed any st udent. B -2 RF, Tab 4
at 398 -99.
¶11 In the remand initial decision, the administrative judge explained that an
appellant must identify the regulation or provision that she reasonably believe d
was violated if it is not clearly implicated by the facts. RID at 9 (referencing
Salerno , 123 M.S.P.R. 230 , ¶¶ 6 -7; El, 123 M.S.P.R. 76 , ¶ 10 n.11). She went on
to find that “the appellant’s statement that she orally disclosed an action she
believed to be ‘improper and dangerous’ fails to establish by preponderant
evidence that a disinterested observer would believe she disclosed a violation of
agency policy.” RID at 9. The administrative judge further supported this
conclusion by discussing, inter alia, the agency’s process for reporting incidents
of child abuse and neglect, a nd noting that the appellant did not follow that
process. RID at 9 -10.
2 In her remand initial decision, the administrative judge noted that the appellant
submitted a report of investigation from a related equal employment opportunity
discrimination complaint totaling o ver 3,000 pages. RID at 4 n.1. The administrative
judge explained that, in the absence of specif ic citations to that evidence, s he had not
independently examined the report to determine whether anything contained within
supported the appellant’s burden i n this appeal. Id. For the same reasons, we have
considered the evidence the appellant referenced in her petition for revie w, but we have
not otherwise po red through the exhaustive record. See Keefer v. Department of
Agriculture , 92 M.S.P.R. 476 , ¶ 18 n.2 (2002) ( recognizing that an appellant is required
to articulate claims with reasonable clarity and precision and that “it is not the Board’s
obligation to pore through the record . . . or to construe and make sense of allegations
that [are] set forth at various parts of an extremely voluminous case file”) ; 5 C.F.R.
§ 1201.115 (a)(2) (requiring that a petition for review “ explain why the challenged
factual determination is incorrect and identify specific evidence in the record that
demonstrates the error ”).
7
¶12 While a disclosure about child safety certainly could be protected even if an
individual did not follow designated reporting procedures, we agree with the
administrative judge’s conc lusion that the appellant failed to prove, by
preponderant evidence, that she made Disclosure 3(a) and it was protected. In
our Opinion and Order, we found that the appellant presented nonfrivolous
allegations of protected disclosures because her allegati ons implicated agency
regulations pertaining to school safety, as well as some associated state statutes
or regulations. Benton -Flores , 121 M.S.P.R. 428 , ¶¶ 8 -10. However, even if we
fully credited the appellant’s affidavit, which appears to be the only additional
evidence she provided to support Disclosure 3(a) on remand, it merely alleges
that Disclosure 3(a) was one of “imp roper and dangerous” actions. B-2 RF,
Tab 22 at 108. The appellant has not identified any additional evidence to further
explain, for example, what led to the aide’s actions, whether the child was harmed
in any way, whether she feared that the child was harmed in any way, or precisely
how she rea sonably believed the “improper and dangerous” actions amounted to a
violation of law, rule, or regulation. Nor has she identified any evidence that her
disclosure included similar details. In other words, while the appellant may have
reasonably believed that she was disclosing wrongdoing, she failed to prove that
she reasonably believed that she was disclosing wrongdoing that rose to the level
of a violation of law, rule, regulation, or other protected category. See
Benton -Flores , 121 M.S.P.R. 428 , ¶ 8; see also Keefer v. Department of
Agriculture , 82 M.S.P.R. 687 , ¶ 11 (1999) (recognizing that, to be protected, a
disclosure must be specific and detailed, not a vague allegation of wrongdoing
regarding broad or imprecise matters).
Disclosure 3(b)
¶13 In her OS C complaint, the appellant described Disclosure 3(b), an oral
disclosure to her Assistant Principal, as revealing that an aide “did push and
shove [], a student with autism, away, when he ran to her to be comforted.” IAF,
Tab 5 at 15. According to this O SC complaint, the incident was witnessed by
8
another aide, who “felt for” the child. Id. In her sworn affidavit submitted on
remand, the appellant described the incident somewhat differently. B -2 RF,
Tab 22 at 108. The appellant asserted that she disclo sed seeing the aide
“physically push and shove [a particular student in her classroom], who was
diagnosed with autism.” Id. She further asserted that she informed the Assistant
Principal that the action was “improper and dangerous.” Id.
¶14 The administra tive judge found the earlier of the two descriptions more
reliable. RID at 12. She then concluded that the appellant failed to meet her
burden for Disclosure 3(b) for the same reasons she failed to meet her burden for
Disclosure 3(a). RID at 12 -13. Amo ng other things, she observed that the
appellant did not allege that she followed up about this incident or otherwise
establish that she reasonably believed that she disclosed something that rose to
the level of a violation of law, rule, or regulation. RI D at 13. The administrative
judge also noted that, despite her earlier indication that another aide witnessed
the event, the appellant failed to provide a statement from that individual or
anything else for corroboration. Id. We further note that the al leged recipient,
the Assistant Principal, did not recall any such disclosure. B -2 RF, Tab 4
at 398-99.
¶15 Again, we agree with the administrative judge’s conclusion that the
appellant failed to meet her burden for Disclosure 3(b). The appellant provided
minimal information about both the underlying incident and her alleged
disclosure about the same. Without more information, we cannot determine
whether the appellant was disclosing actions that were insensitive, but far shy of
a child safety issue, or someth ing much worse. Therefore, we find that she has
not proven by preponderant evidence that she made Disclosure 3(b) and had a
reasonable belief that it revealed wrongdoing that rose to the level of a violation
of law, rule, regulation, or other protected ca tegory.
9
Disclosure 3(c)
¶16 As with the other disclosures , the Board found that the appellant met her
jurisdictional burden for Disclosure 3(c) based on the description she provided in
her OSC complaint. There, the appellant described Disclosure 3(c) as in volving
an autistic student being physically restrained by an untrained aide. IAF, Tab 5
at 8. She further indicated that “[t]hese types of restraints have resulted in . . .
the death of children.” Id. Unlike Disclosure 3(a) -(b), which were not
documented, Disclosure 3(c) occurred via email, copies of which the appellant
provided on remand. B -2 RF, Tab 8 at 100 -01. The email chain begins with the
appellant complaining about an aide’s use of her time. Id. After the Assistan t
Principal responded, the appellant replied. Id. Near the end of that reply, which
was largely a complaint about scheduling and time management, the appellant
stated the following:
They obviously can’t handle [a particular student] when he is having
a difficult day, or they wouldn’t have had to RESTRAIN the child
over there. To the best of my knowledge, no one in that particular
class has had any experience or TRAINING in RESTRAINING A
CHILD, let alone one with AUTISM. This is very dangerous
practice to be re [s]training a child without the proper training, and
then email the world that this is what was done. Some children have
actually died while being re [s]trained.
Id. at 100 (grammar, punctuation, and spelling in original).
¶17 While finding that the appellant failed to prove that Disclosure 3(c) was
protected, the administrative judge noted that the appellant failed to specify when
the alleged restraint took place or the circumstances under which it occurred.
RID at 14. She further recognized that the appellant did not allege that
restraining a student is per se impermissibl e—the appellant merely speculated
about whether the employees were trained to do so. Id. Finally, the
administrative judge observed that the appellant failed to identify any po licy
concerning the appropriateness of restraining students. Id.
10
¶18 On review, the appellant reasserts that restraining a child can have fatal
consequences. RPFR File, Tab 3 at 14. While that may be true, we agree with
the administrative judge’s conclusion that the appellant failed to prove, by
preponderant evidence, that Disclosure 3(c) was protected. The appellant did not
disclose, for example, that an employee had actually restrained a child in a way
that harmed or risked harming the child . Nor did she disclose that an employee
had restrained a child in a way that was contrary to law, rule, or regulation.
Instead, the appellant simply suggested that someone restrained a child, at some
time, and may have done so without training. B -2 RF, Tab 8 at 100. Absen t more
information, the administrative judge correctly found that the appellant failed to
prove that she made a protected disclosure.
The appellant failed to prove that Disclosure 4 or 5 was protected.
¶19 As discussed in both the Board’s Opinion and Ord er and the remand initial
decision, what the Board characterized as Disclosures 4 -5 involved three discret e
incidents, each involving the same teacher’s aide. Benton -Flores , 121 M.S.P.R.
428, ¶¶ 7, 9; RID at 8 -14; IAF, Tab 5 at 8, 12 -13. The first, which we will call
Disclosure 4(a), generally involved the aide bringing a razor into a classroom.
IAF, Tab 5 at 8. The second, Disclosure 4(b), generally involved the aide
pushing a child on a swing.3 Id. The last, Disclosure 5, generally involved the
aide yelling, rummaging through drawers, and blocking the appellant. Id. at 8,
12-13.
3 In our Opinion and Order, we characte rized Disclosure 4 as involving a staff member
endanger ing students by bring ing a razor into the classroom and Disclosure 5 as
involving threatening behavior toward the appellant . Benton -Flores , 121 M.S.P.R. 428 ,
¶ 7. Although the incident involving the aide pushing a child on a swing does not fit
within either description, it is an alleged disclosure about endangering student s, more
closely aligned with Disclosure 4. Accordingly, like the administrative judge, we have
grouped it with the disclosure about the razor blade. RID at 17 -19. This grouping and
labeling is only provided for clarity and consistency; it is of no subst antive consequence
in this appeal.
11
Disclosure 4(a)
¶20 According to her OSC c omplaint, in Disclosure 4(a), the appellant reported
that her aide was doing things that were unsafe for the school children, including
his bringing a razor into the classroom. IAF, Tab 5 at 8. To corroborate this, the
appellant submitted an email from h er to the aide, where in she stated, “There is a
very sharp razor laying on your desk. This is very dangerous to our kids. Please
remove it or take it home.” PFR File, Tab 10 at 17. The appellant then
forwarded that message to an agency official with a note indicating that sh e had
taken a picture of the razor, i n anticipation that the aide might lie about it. Id.
The record also includes corroborating deposition testimony from another agency
official, the Principal. B -2 RF, Tab 4 at 199 -200. The Principal confirmed that
the appellant raised the issue of the razor with her, the Principal discussed the
matter with the aide, and he explained that he had been using it for a class project
but had since removed it. Id.
¶21 The administrative judge found that the appellant failed to prove that she
reasonably believed Disclosure 4(a) was protected. RID at 17. She found it
inherently improbable that the appellant reasonably believed that she was
disclosing a threat to student s, yet responded merely by taking a picture and
emailing the aide, rather than removing the razor herself. Id. The administrative
judge also noted that the appellant failed to cite any specific policy prohibiting
the use of razors within school premises. Id.
¶22 On review , the appellant argues that razor s are inherently dangerous in a
school setting, regardless of whether there was a policy prohibiting them. RPFR
File, Tab 3 at 15 -16. While that may be true, it was the appellant’s burden to
prove that she reasonably believed she was making a protected disclosure.
Absen t further explanation or context, we agree with the administrative judge’s
determination that the appellant did not meet that burden. Without a policy
altogether prohibiting the razor, it wa s incumbent upon the appellant to prove that
she reasonably believed that the disclosure concerning the razor on school
12
premises nevertheless rose to the level of a violation of law, rule, regulation, or
other protected category. She has not done so. The appellant’s suggestion that
the razor posed an inherent and immediate threat to students appears inconsistent
with an admission she referenced on revie w—the appellant photographed the
razor, but left it sitting there for several hours until the aide retrieved it. See
RPFR File, Tab 3 at 7 (citing B -2 RF, Tab 6 at 57). In fact, the appellant
previously presented an altogether different concern than the one she now asserts.
In a prior statement about the matter, the appellant showed no concern for the
students; rather she explained, “I was very concerned about what he might be
thinking. I felt in danger. (I honestly thought someone could come into this
room and find my bloody body under a desk).” B -2 RF, Tab 6 at 57.
Disclosure 4(b)
¶23 Disclosure 4(b) cons ists of an email from the appellant to administrators in
which she asserted that her aide “started pushing this little boy on the swin g—and
something I felt was way too high. If the child accidently flew -off, he would
have surely have gone through one of the classroom windows.” PFR File, Tab 10
at 23. According to her email, the appellant informed the aide that he was
frightening her, but he ignored the appellant’s concerns and continued to swing
the child high in the air. Id. The appellant suggested t hat another teacher had
expressed similar concerns. Id.
¶24 Like the other alleged disclosures, the administrative judge found that the
appellant failed to meet her burden for Disclosure 4(b). RID at 18. She
explained that while the appellant previously had presented nonfrivolous
allegations, the appellant did not present further specificity on remand to prove
that she reasonably believed this to be a protected disclosure. Id. The
administrative judge also noted that the appellant failed to include any ev idence
corroborating the assertion that another teacher had witnessed the aide’s swinging
a child . Id.
13
¶25 On review, the appellant has referenced this disclosure, generally, but she
has not presented any particularized argument about it. RPFR File, Tab 3 at 17.
The appellant simply asserts that Disclosures 4(a) -(b) “focus on the potential or
risk of serious bodily harm.” Id. However, like the other allegations , we are
unable to discern the gravity of Disclosure 4(b) with the limited context provided;
the record is unclear whether the appellant was discussing someone not meeting
her expectations or, more seriously, discussing what she reasonably perceived to
be a violation of law, rule, regulation, or other category of protected disclosure.
Disclosure 5
¶26 In the final disclosure that we previously recognized as within our
jurisdiction, Disclosure 5, the appellant sent an email to administrators,
characterizing her aide as “abusive.” PFR File, Tab 10 at 14. The details within
this email more specifically desc ribe an incident in which the appellant asked him
for copies of an individualized education plan and he responded with a tirade that
invaded her privacy, embarrassed her, and left her feeling helpless. Id.
¶27 The administrative judge found that the appellant failed to prove that she
reasonably believed this to be a protected disclosure. RID at 15 -16. While the
appellant argued that she reasonably believed that she was disclosing threatening
and dangerous behavior, the administrative judge found the argument undermined
by the fact that the appellant waited nearly a month to report the incident. Id.
The administrative judge also found the appellant’s description of the aide’s
conduct notably less serious than disclosures of threats that the Board has found
protected in other cases . RID at 16 (citing Baldwin v. Department of Veterans
Affairs , 113 M.S.P.R. 469 , ¶¶ 16, 18 (2010)).
¶28 On review, the appellant emphasizes that the aide pushed past her, arguing
that the administrative judge failed to properly consider that portion of her
disclosure. RPFR File, Tab 3 at 15. The appellant’s email to administrators did
include an allegation that the aide “bursted into [her] office, pushing pass [her].”
PFR File, Tab 10 at 14 (spelling a nd grammar in original). It also includes an
14
allegation that the appellant “tried to block [her] desk with [her] body, but [the
aide] was reaching [past] [her] anyhow.” Id. However, while the appellant would
have us find this comparable to a disclosure concerning threats of violence, we
are not persuaded. It is evident that the appellant did not approve of her aide, for
a number of reasons. But the appellant has not proven, by preponderant evidence,
that her disclosures about him were protected.
¶29 In su m, we agree with the administrative judge’s conclusion that , although
the appellant satisfied her jurisdictional burden by presenting nonfrivolous
allegations, she failed to then present additional arguments and evidence
satisfying her higher burden of pro of on the merits. Therefore, we conclude that
the administrative judge properly denied the appellant’s request for corrective
action.4
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Althou gh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to fi le within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
16
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
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:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
6 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
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.
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 | BENTON_FLORES_REDALE_DC_1221_13_0522_B_2_FINAL_ORDER_1995607.pdf | 2023-01-23 | null | DC-1221 | NP |
3,752 | https://www.mspb.gov/decisions/nonprecedential/ABRAM_GLORIA_D_AT_0752_16_0589_C_1_FINAL_ORDER_1995616.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GLORIA D. ABRAM,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0752 -16-0589 -C-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria D. Abram , Decatur, Georgia, pro se.
Andrew M. Greene , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the compliance initial
decision, which dismissed as moot her petition for enforcement. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of mat erial fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial dec ision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal 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. Except as
expressly MODIFIED by this Final Order to find that the agency did not
materially breach the settlement agreement at issue , we AFFIRM the initial
decision.
BACKGROUND
¶2 In June 2016, the appellant timely filed an appeal contesting the agency’s
decision to suspend her for 20 days from her position as a Contact Representative.
Abram v. Department of the Treasury , MSPB Docket No. AT -0752 -16-0589 -I-1,
Initial Appeal File (IAF), Tab 1 , Tab 2 at 6 -10. In August 2016, the parties
executed a settlement agreement providing that, in exchange for the appellant’s
withdrawing her appeal, the agency agreed to “fully rescind ” the su spension,
restore all back pay, including overtime pay and leave that would have accrued
during the suspension period, and “adjust any administrative personnel actions to
reflect what would have otherwise occurred but for the suspension,” including,
but not limited to, a within -grade increase (WIGI) or ste p increase. IAF, Tab 13
at 4-8, 13 . The administrative judge issued an initial decision finding that the
Board had jurisdiction over the appeal, the settlement agreement was lawful, and
the appellant understood the terms of the agreement and had voluntarily entered
3
into it. IAF, Tab 14, Initial Decision (ID). The administrative judge retained
jurisd iction to enforce the agreement and dismissed the appeal. ID at 2.
¶3 In September 2016, the appellant timely filed a petition for enforcement
alleging that the agency was not in compliance with the settlement agreement
because it had failed to pay her all the back pay she was owed and adjust
administrative personnel actions, and the suspension was still reflected in her
time and attendance records. Abram v. Department of the Treasury , MSPB
Docket No. AT -0752 -16-0589 -C-1, Compliance File (CF), Tab 1 at 6-7. The
agency responded that it was in compliance, as i t had rescinded the suspension ,
adjusted the appellant’s records to reflect a WIGI, and corrected her time and
attendance records. CF, Tabs 4, 5. The appellant continued to allege that the
agency had not fully corrected her time and attendance records, to which the
agency responded that it had corrected the records to remove time codes showing
the suspension and to reflect that she was i n a work status during the period of the
suspension, but that the agency record retention policy precluded it f rom
changing the original entry recording the suspension in the agency’s electronic
time and attendance record system , and that thus the agency w as in compliance
with the agreement. CF, Tabs 9, 13, 16.
¶4 The administrative judge issued a compliance initial decision finding that ,
although the appellant’s time and attendance record s would reflect the original
suspension entry, the agency had “done a ll that it can do to res cind the appellant’s
suspension. ” CF, Tab 18, Compliance Initial Decision (CID) at 2 -3. She found
that, because the appellant had requested enforcement of the agreement, there was
no further re lief that the Board could order and d ismissed as moot the compliance
action. CID at 3 -4.
¶5 The appellant has timely filed a pe tition for review in which she argues that
the administrative judge erred in finding that the agency was in compliance with
the settlement agreement because she was e ntitled to have the original suspension
entry in her time and attendance records removed as part of the agency’s
4
agreement to rescind the suspension. Petition fo r Review (PFR) File, Tab 1
at 12-15. The agency has filed an opposition arguing that retainin g the original
suspension entry is not a material breach of the agreement. PFR File, Tab 3
at 6-8. The appellant has filed a reply t o the agency’s opposition. PFR File,
Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Vance v. Department of the Interior , 114 M.S.P.R. 679 , ¶ 6 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. In a
compliance action based on a settlement agreement, the burden of proving
noncompliance rests with the party asserting that the agreement has been
breached. Raymond v. Department of the Navy , 116 M.S.P.R. 223 , ¶ 4 (2011).
The appellant, as the party asserting the breach, must show that the agency failed
to abide by the terms of the settlement agreement. Id. The agency nonethe less is
required to produce evidence that it has complied with the settlement agreement.
Id.
¶7 When interpreting a settlement agreement, we first ascertain whether the
agreement clearly states the parties’ understanding. Conant v. Office of
Personnel Manag ement , 255 F.3d 1371 , 1376 (Fed. Cir. 2001). Any remaining
ambiguities are resolved by implementing the parties’ intent at the time the
agreeme nt was made. Id. Here, the pertinent provision of the settlement
agreement provides that the agency is to “[f]ully rescind the Appellant’s 20 -day
suspension[.]” IAF, Tab 13 at 5. The agreement does not specify how rescinding
the suspension is to be effected , much less specify which documents or files are
to be altered or removed to effect the rescission . Id.
5
¶8 Our reviewing court has opined that, in the context of a settlement
agreement rescinding an adverse action and expunging records relat ed to that
adverse action , to “rescind” is to “destroy” and “ erase ” the adverse action and the
reasons for it from the appellant’s “professional record” with the agency.
Conant , 255 F.3d at 1376 . In applying our reviewing court’s precedential
decisions regarding such agreements , also known as “clean record” agreements ,
we have construed the agreements to require the agency to expunge documents
related to the adverse action from “all personnel records that are officially kept,”
and to not disclose such doc uments to third parties, even if the settlement
agreement did not explicitly set forth these requirements. Torres v. Department
of Homeland Security , 110 M.S.P.R. 482 , ¶¶ 10-11 (2009) ( discussing the Board’s
application of the standards set forth in Conant , 255 F.3d 1371 , and Pagan v.
Department of Veterans Affairs , 170 F.3d 1368 (Fed. Cir. 1999) ); see Felch v.
Department of the Navy , 112 M.S.P.R. 145 , ¶¶ 9-14 (2009) ( applying the
standards for clean record agreements to the settlement of a suspension appeal).
¶9 We have extended t hese requi rements to settlement agreements that require
the agency to cancel or rescind the adverse action but are silent as to expunging
records related to the action , as is the agreement here . See Kitt v. Department of
the Navy , 116 M.S.P.R. 680 , ¶¶ 8-10 (2011) (overruling Cutrufello v. U.S. Postal
Service , 56 M.S.P.R. 99 (1992), as contrary to Conant , 255 F.3d 1371 ). Despite
the lack of provisions regarding expunging records in the settlement agreement at
issue, the agreement necessarily required that records regarding the suspension be
expunged from the appellant’s personnel records for her to receive “that for
which [she] bargai ned.” Pagan , 170 F.3d at 1372 . Thus, if an entry in the
agency’s electronic time and attendance record system , which is the agency’s
official time and attendance record, is a personnel record, the agency’s failure to
remove the original entry recording t he appellant’s suspension in her time and
attendance records would constitute a breach of the agreement. CF, Tab 13 at 17.
6
¶10 Even if the agency’s inaction constituted a breach of the settlement
agreement, the breach was not a material one. For the appellant to prevail in a
compliance action, she must show not only that the agency acted in a manner that
is inconsistent with a term of the settlement agreement, but that there was
material noncompliance with a settlement term. See Lutz v. U.S. P ostal Service ,
485 F.3d 1377 , 1381 (Fed. Cir. 2007) . A breach is material when it relates to a
matter of vital importance or goes to the essence of the contract. Id.; Flores v.
U.S. Postal Service , 115 M.S.P.R. 189 , ¶ 9 (2010). A party may establish such a
breach of an agreement “by proving that the other party failed to comply with a
provision of the contract in a way that was material, regardless of the party’s
motive.” Flore s, 115 M.S.P.R. 189 , ¶ 9 (citing Link v. Department of the
Treasury , 51 F.3d 15 77, 1582 (Fed. Cir. 1995 )).
¶11 It is undisputed that the agency removed references to the s uspension from
the appellant’s official personnel f ile and corrected her time and attendance
records su ch that the hours for which she was recorded as in a suspension status
were changed to reflect that she was in a work status. IAF, Tab 12 at 4 -5; CF,
Tab 11 at 13 -14, Tab 16 at 7 , 20-21. However, the agency did not change the
original suspension entry in the appellant’s time records, citing its document
retention policy . CF, Tab 13 at 17 -18, Tab 16 at 22-23. Thus, a numerical code
remained in the historical data of the agency’s electronic time and attendance
records that showed the a ppellant in a suspen sion status for each of the 3 weeks in
which she was originally in a suspension status . CF, Tab 16 at 22 -23. The
agency averred that the entry would be removed f rom the agency’s records in
accordance with its document retention policy, which provided tha t time and
attendance source records may be destroyed after a Government Accountability
Office audit or 6 years, whichever occurred sooner. CF, Tab 13 at 17 -18, Tab 16
at 59. The agreement does not identify the relevance of correcting this historical
data to rescinding the suspension , and the parties differ in their inte rpretation of
the data’s import; thus, we look to extrinsic evidence of the parties’ intent at the
7
time they executed the agreement. See Conant , 255 F.3d at 1376; Sweet v. U.S.
Postal Ser vice, 89 M.S.P.R. 28 , ¶ 15 (2001).
¶12 Prior to executing the settlement agreement, the agency moved to dismiss
the initial appeal because it had rescinded the suspension action; however, the
appellant disputed that the agency had fully rescinded the suspension because it
had not “restor[ed] the appellant’s back pay, overtime pay, and any other ben efits
lost as a result of the agency’s adverse action.” IAF, Tabs 6, 8, Tab 9 at 2. The
resulting settlement agreement included provisions specifically addressing the
agency’s restoring back pay, overtime pay, leave, and a WIGI or step incr ease.
IAF, Tab 13 at 5. Thus, at the time the agreement was executed, the parties
appear to have been primarily concerned with restoring benefits the appellant had
lost during the suspension , and there is no dispute t hat she receiv ed the benefits
owed to her . CF, Tab 8 at 1. In addition, a lthough not stated in the agreement,
we have found that individuals often pursue the expungement of an adverse action
to avoid any effect it may have on future employment. Modrowski v. Departmen t
of Veterans Affairs , 97 M.S.P.R. 224 , ¶ 11 (2004); see King v. Department of the
Navy , 130 F.3d 1031 , 1033 -34 (Fed. Cir. 1997).
¶13 According to an e mail exchange involving agency human resources
employees that was entered into the record below, the historical data in question
may only be reviewed by the appellant’s immediate supervisor and the agency’s
payroll agent . CF, Tab 16 at 7-8. The appellant does not dispute this statement
but alleges that anyone that her supervisor designates to input time records, s uch
as a timekeeper, will have access to the historical data, and the new supervisor to
which she has been assigned may see the data. CF, Tab 17 at 6. Regardless,
those who may view the data are limited to those with a need to know about the
appellant’s time records, and there is no evidence that a future employer would be
able to view the data. Thus, the historical data does not affect the appellant’s
future employment, nor does it affect the restoration of lost benefit s contemplated
by the agreement . We conclude that the historical data remaining in the
8
appellant’s time and attendance records does not go to the essence of the
agreement between the parties and thus do es not constitute a material breach of
the agreement. See, e.g. , Barnett v. Department of Agriculture , 113 F. App’x
908, 909-11 (Fed. Cir. 2004) (nonprecedential) (holding that the limited
disclosure of a settlement agreement to agency employees did not materially
breach the agreement)2; King v. Department of the Navy , 178 F.3d 1313 (Fed. Cir.
1999) (Table) (nonprecedential) (holding that a retirement record maintained by
the Defense Finance and Accounting Service did not materially breach a clean
record agreement); Modrowski , 97 M.S.P.R. 224 , ¶¶ 11-12 ( concluding that the
Office of Personnel Management’s retaining a retirement record containing a
reference to the appellant’s removal did not constitute a material brea ch of the
settlement agreement ).
¶14 While the settlement agreement does not provide for expunging the data in
question , the agency must nevertheless observe appropriate safeguards so as to
not injure the appellant’s employment prospects or otherwise affect th e
confidentiality of the data. See Baig v. Department of the Navy , 66 M.S.P.R. 269 ,
275 (stating that , although an agency may retain a litigation file, it must observe
appropriate safeguards to protect the appellant’s employment prospects and
confidentiality of the file), aff’d , 64 F.3d 677 (Fed. Cir. 1995) (Table) . Should
the appellant discover that the agency has disclosed information about the
rescinded action to a third party, she may file a petition for enforcement regarding
the disclosure.3 See Torres , 110 M.S.P.R. 482 , ¶ 11.
2 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 ,
¶ 13 n.9 (2016).
3 For the first time on review, the appellant also alleges that the agency acted in bad
faith during settlement negotiations by withholding information about the document
retention policy. PFR File, Tab 4 at 8 -12. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The
9
¶15 In light of the agency’s material compliance, there is no basis upon which
the appellant is entitled to relief . Accordingly, we affirm the administrative
judge’s compliance initial decision, as modified by this Final Order, dismissing as
moot the petition for enforcement.
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summar y of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
appellant has not established a basis for considering her newly raised argum ent; thus,
we do not consider it.
4 Since the issuance of the initial deci sion in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
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 the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or o ther security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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) o r
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Feder al Circuit or any court of appeals of
competent jurisdiction.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 f or judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petition s for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 2 6, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 i s
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/p robono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation i n a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cour t_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ABRAM_GLORIA_D_AT_0752_16_0589_C_1_FINAL_ORDER_1995616.pdf | 2023-01-23 | null | AT-0752 | NP |
3,753 | https://www.mspb.gov/decisions/nonprecedential/HALL_JAMES_E_AT_0752_17_0511_I_1_FINAL_ORDER_1995622.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES E. HALL,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -17-0511 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James E. Hall , Saint Helena Island, South Carolina, pro se.
Paulette D. Jenkins , Beaufort , 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 his appeal of his removal as untimely filed . On petition for review, the
appellant admits that his appeal was late but argues that the administrative judge
should have nonetheless concluded that there was good cause for the delay .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 a n 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 proced ures 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 b asis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not prov ide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final deci sion, you should
immediately review the law applicable to your claims and carefully follow all
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 applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for mo re information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 c ourts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HALL_JAMES_E_AT_0752_17_0511_I_1_FINAL_ORDER_1995622.pdf | 2023-01-23 | null | AT-0752 | NP |
3,754 | https://www.mspb.gov/decisions/nonprecedential/CHOWDHURY_ENAMUL_HAQE_DC_3443_21_0635_I_1_FINAL_ORDER_1995645.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ENAMUL HAQE CHOWDHUR Y,
Appellant,
v.
DEPARTMENT OF EDUCAT ION,
Agency.
DOCKET NUMBER
DC-3443 -21-0635 -I-1
DATE: January 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Enamul Haqe Chowdhury , Dhaka, Bangladesh, pro se.
Kristin Delbridge , Esquire, and Michael Taylor , 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 this alleged furlough appeal . For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant alleged below that o n or around August 18, 2021 , the agency
furloughed him when it failed to act on his grant applica tion. Initial Appeal File
(IAF), Tab 1 at 5, 12, Tab 4 at 4 -5. The administrative judge dismissed the
appeal for lack of jurisdiction in a September 27, 2021 initial decision.
IAF, Tab 10, Initial Decision ( ID) at 1, 5. The initial decision notified the
appellant of his further review rights, including the deadline for filing a petition
for review —November 1, 2021. ID at 5.
¶3 On January 11, 2022 , the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 10, Tab 11 at 1 & n.* . In his petition for review, the
appellant did not address the timeliness of his submission. PFR File, Tab 10.
The a gency responded to the petition and also moved to dismiss it as untimely
filed. PFR File, Tab 12 a t 9.
¶4 The Of fice of the Clerk of the Board informed the appellant that his petition
was untimely filed because it was not postmarked or received in the Clerk’s
office on or before November 1, 2021 . PFR File, Tab 11 at 2. The Clerk ’s Office
further infor med the appellant that the Board might dismiss his petition for
review as untimely filed unless he filed a motion, including a statement, signed
under penalty of perjury, or an affidavit, showing that his petition for review was
timely filed or that good c ause existed for the filing delay. Id. The Clerk
attached a form “Moti on to Accept Filing as Timely and/ or to Ask the Board to
Waive or Set Aside the Time Limit.” Id. at 8-9. The appellant did not respond to
the Clerk’s notice , but he did file a reply to the agency’s response in which he
appears to concede that his petition for review was untimely . PFR File, Tab 13
at 7.
3
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 issuance of the initial decision or, if the party
shows he received the initial decision more than 5 days after it was issued, within
30 days of his receipt of the decision. 5 C.F.R. § 1201.114 (e). The initial
decision was issued on September 27, 2021 , and was sent to the appellant, who
was a registered e -filer, the same day. ID at 1; IA F, Tab 1 at 2, Tab 11. Bo ard
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). Thus, as the initial
decision sets for th, the appellant’s petition for review was due on, or before,
November 1, 2021, and his January 11, 2022 petition for review was untimely
filed by 71 days. ID at 5 -6.
¶6 The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the delay in filing. Palermo v. Department of the
Navy , 120 M.S.P.R. 694 , ¶ 4 (2014); 5 C.F.R. § 1201.114 (g). The party who
submits an untimely petition for review has the burden of establishing good cause
for the untimely filing by showing that he exercised due diligence or ordinary
prudence under the circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4.
Here, the appellant filed his petition for review 71 days after the filing deadline,
and despite the Clerk of the Board’s notice, he has not offered any explanation for
the filing delay.
¶7 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding appellant’s alleged furlough .
4
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 belo w do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). Yo u must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case ,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be a ddressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
7
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals fo r
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the F ederal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection B oard appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHOWDHURY_ENAMUL_HAQE_DC_3443_21_0635_I_1_FINAL_ORDER_1995645.pdf | 2023-01-23 | null | DC-3443 | NP |
3,755 | https://www.mspb.gov/decisions/nonprecedential/BRITTON_JENNIFER_A_CH_0752_16_0492_I_1_FINAL_ORDER_1994916.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JENNIFER A. BRITTON,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
CH-0752 -16-0492 -I-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bernard K. Weiler , Esquire, Sugar Grove, Illinois, for the appellant.
Lauren Hoyso n, Esquire, and Virginia C. Costello , Esquire, Des Plaines,
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 her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circ umstances: 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 application of the law to
the facts of the case; the administrative judge’ s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argume nt is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In February 2016, the agency ’s regional flight surgeon determined that the
appellant, an Air Traffic Contr ol Specialist, AT -2152 -EH, was no longer
medically qualified to perform the duties of her position. Initial Appeal File
(IAF), Tab 5 at 7 -8. The appellant did not request reconsideration of the regional
flight surgeon’s determination and informed the age ncy that she wished to seek
other employment in the region. Id. at 10 -11. Also in February 2016, the agency
reviewed staffing at the appellant’s facility and did not locate any vacant
positions for which she was qualified. Id. at 10. According to the appellant , she
undertook her own search for a position and applied and interviewed for multiple
positions within the agency , without agency assistance. IAF, Tab 1 at 5. The
appellant applied for and was offered a position as an Air Traffic Assistant , FV‑
2154-F. IAF , Tab 5 at 17 -18. The salary for the new position was $17,904 less
than the appellant’s original salary and reduced both her basic and locality pay .
Id. at 23 . The appellant requested that the agency restore some or all of the pay
difference, stating that the agency previously had done so for other employees
3
moving to different positions within the agency. Id. at 22. The agency decline d
to provide any additional pay, stating that the selection was competitive and
voluntaril y accepted by the appellant. Id. at 21. In June 2016, the appellant
accepted and was reassigned to the Air Traffic Assistant position at the lower pay
rate. Id. at 20, 23.
¶3 The appellant timely filed a Board appeal alleging that she was subjected to
an involuntary reduction in pay. IAF, Tab 1 at 3, 5. Specifically, she alleged that
she had to take the Air Traffic Assistant position, and hence a pay cut, because
she was near the end of the 1 -year period after losing her medical clearance
before she was removed from the agency , and that the agency did not assist her in
locating a position and had discriminated against her because of her mental
illness.2 Id. at 5. She did not request a hearing. Id. at 2. The administrative
judge issued an order notifyi ng the appellant of the requirements to establish
Board jurisdiction over her appeal and directing her to file evidence and argument
establishing jurisdiction within 15 days of the date of the order. IAF, Tab 7
at 2-4. The agency moved to dismiss the appeal because the appellant failed to
make a nonfrivolous allegation of jurisdiction , as she voluntarily sought and
accepted the Air Traffic Assistant position. IAF, Tab 8 at 5 -7. The appellant did
not respond to the administrative judge’s order or to t he agency’s motion . IAF,
Tab 9, Initial Decision (ID) at 3. T he administrative judge issued an initial
decision based on the written record, in which she found that the appellant’s
acceptance of the Air Traffic Assistant position was voluntary and dismis sed the
appeal for lack of jurisdiction. ID at 3-5.
2 In its response to the appellant’s petition for review, the agency asserts that at the time
of her initial appeal, the appellant was pursuing the same claims of discrimination made
in her Board appeal before the Equal Employment Opportunity Commission (EEOC).
Petition for Review (PFR) File, Tab 3 at 8. Neither party has provided any further
information or documentation regarding the appellant’s alleged EEOC claim and
whether she was informed of the requirement to elect either to appeal to the EEOC or to
the Board. See, e.g., McCoy v. U.S. Postal Service , 108 M.S.P.R. 160 , ¶ 14 (2008).
4
¶4 The appellant timely filed a petition for review . Petition for Review (PFR)
File, Tab 1. The agency has filed a response opposing the petition, to which the
appellant has filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 It is undisputed that the appellant applied for and was offered the Air
Traffic Assistant position, at a lower pay rate than her original position, which
she accepted. IAF, Tab 1 at 5. An employee -initiated actio n is presumed to be
voluntary, and the Board does not have jurisdiction over voluntary actions.
Soler -Minardo v. Department of Defense , 92 M.S.P.R. 100 , ¶ 5 (2002). However,
an appellant may establish that an employee -initiated action was involuntary, and
thus wit hin the Board’s jurisdiction, by presenting sufficient evidence that it was
the result of duress or coercion brought on by the agency, or the result of her
reasonable reliance on mislea ding statements by the agency. Harris v.
Department of Veterans Affair s 114, M.S.P.R. 239 , ¶ 8 (2010) ; Reed v. U.S.
Postal Service , 99 M.S .P.R. 453 , ¶ 12 (2005), aff’d , 198 F. App’x 966 (Fed. Cir.
2006). Coercion is present if the appellant can establish that she accepted a
reduction in pay to avoid a threatened removal, and if s he can further show that
the agency knew or should have known that the action could not be substantiated .
Harris , 114 M.S.P.R. 239, ¶ 8; Soler -Minardo , 92 M.S.P.R. 100 , ¶ 6. Whe n, as
here, the appellant has not requested a hearing, she must establish by
preponderant evidence that the reduction in pay is within the Board’ s jurisdiction.
See Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 18 (2007)
(stating that w hen the appellant has not requested a hearing, “the threshold
question is . . . whether he has established by preponderant evidence that the
Board has jurisdiction over his appeal”).
5
The administrative judge pro perly found that the appellant did not establish that
her reduction in grade was involuntary and thus did not establish Board
jurisdiction over her appeal.
¶6 The appellant has not established by preponderant evidence that her
acceptance of the Air Traffic A ssistant position at a lower rate of pay was
involuntary and thus within the Board’s jurisdiction. First, the appellant has not
shown that she accepted the reduction in pay to avoid a threatened removal. See
Harris , 114 M.S.P.R. 239 , ¶ 8. Although the appellant suggested that she would
have been removed from the agency 1 year after the loss of t he medical clearance
required for her original position , the record does not reflect that the agency in
fact threatened to remove her. IAF, Tab 1 at 5 ; cf. Goldberg v. Department of
Transportation , 97 M.S.P.R. 441 , ¶ 3 (2004) ( noting that the appellant alleged
that the agency ’s administrative officer told him several times that he would be
separated from the agency if he did not accept the position offered).
¶7 The appellant also has not shown that the agency knew or should have
known that a removal action , if taken, could not be substantiate d. See Harris ,
114 M.S.P.R. 239 , ¶ 8. The appellant does not dispute that she was no longer
medically qualified to perform the duties of her Air T raffic Control Specialist
position . IAF, Tab 1 at 5, Tab 5 at 7, 11 . Her medical inability to perform the
duties of her original position could have served as the basis for a removal action.
O’Connell v. U.S. Postal Service , 69 M.S.P.R. 438 , 443 (1996). The appellant
further alleged in her appeal that the agency did not assist her in locating a
position and that, had the agency a ssisted her, she would not have had to take
such a large pay reduction. IAF, Tab 1 at 5. The record reflects that the agency
performed a search for a vacant position for which she was qualified shortly after
she informed the agency she wished to seek oth er employment wi thin the agency.
IAF, Tab 5 at 10. The appellant has not shown that this search was deficient or
that the agency otherwise failed to follow its policies regarding reassignment.
IAF, Tab 1 at 5; cf. Goldberg , 97 M.S.P.R. 441 , ¶ 9 (finding that the appellant
6
nonfrivolously alleged that his reassignment was involuntary whe n he al leged
that, rather than being subject to removal following his medical disqualification,
he was entitled to a position at the highest available grade or level at or below his
current grade or level). Accordingly, we find that the appellant has not
establi shed that a removal action could not be substantiated and cannot show that
her reduction in pay was coerced.
The appellant’s allegations of discrimination do not establish that her reduction in
pay was involuntary.
¶8 On review, the appellant appears to argue either that the administrative
judge did not properly consider her discrimination claim in support of her
argument that her acceptance of the Air Traffic Assistant position was
involuntary , or that the Board has jurisdiction over her clai m as a discriminatory
nonsel ection for positions to which she applied prior to accepting th at position .
PFR File, Tab 1 at 4-5. Under either theory, the Board lacks jurisdiction over the
appellant’s claim.
¶9 To the extent the appellant argues that the administrative judge did not
properly consider her allegation of discrimination in support of her claim that her
acceptance of the Air Traffic Assistant position was involuntary , her argument is
without merit . The appellant alleged below that she applied and interviewed for
multiple positions prior to accepting the Air Traffic Assistant position ; for the
first time on review, she alleges that her failure to be hired for these positions
was the result of disabilit y discrim ination. Compare IAF, Tab 1 at 5 , with PFR
File, Tab 1 at 4 -5. The issue of the Board’s jurisdiction is always before the
Board and may be raised by either party or sua sponte by the Board at any time
during a Board proceeding. Simnitt v. Depar tment of Veterans Affairs ,
113 M.S.P.R. 313 , ¶ 5 (2010). Accordingly, we consider the appellant’s
arguments regarding discriminatio n as they pertain to the jurisdictional questions
of coercion and involuntariness , but find they are insufficient to establish that her
reduction in pay was coerced or involuntary.
7
¶10 When an appellant raises allegations of discrimination in connection with
an involuntariness claim, evidence of discrimination may be considered only in
terms of the standard for voluntariness in a particular situation , not whether such
evidence meets the test for proof of discrimination established under Title VII.
Markon v. De partment of State , 71 M.S.P.R. 574 , 578 (1996). In other words,
even if the agency’s actions are discriminatory, the appellant still must show how
those actions coerced the action at issue. Tripp v. Department of the Air Force ,
59 M.S.P.R. 458 , 461 (1993) . The appellant has not presented evidence in
support of her claim that her nonselection for the positions she applied for prior
to accepting the Air Traffic Assistant position was as a result of discriminat ion,
nor has she presented evidence to establish that a reasonable person would have
felt compelled to accept the Air Traffic Assistant position following the
nonselections. See Loredo v. Department of the Treasury , 118 M.S.P.R. 686 , ¶ 8
(2012) (concluding that the appellant had not presented sufficient evidence of
religious discrimination that would establish that a reasonable person w ould have
felt compelled to accept the demotion under the circumstances) .
¶11 The appellant also appeared to raise a claim below that the agency failed to
accommodate her when it did not assist her with locating a new position. An
appellant may establish that coercion is present when she proves that: (1) the
agency threatened to remove her ; (2) she is a qualified disabled employee entitled
to reasonable accommodation ; and (3) the agency would not accommodate her
disability. O’Connell , 69 M.S.P.R. at 444. Here, the record reflects that ,
following the regional flight surgeon’s finding that she was no longer medically
qualified to pe rform the duties of her original position, the agency conducted a
search for a vacant position for which the appellant would q ualify but did not find
one. IAF, Tab 5 at 10. Although the appellant alleges for the first time on review
that she was excluded from selection for higher -paying positions than the Air
Traffic Assistant position, she has not set forth sufficient evidence to establish
that she was entitled to be reassign ed to a vacant position at a higher grade or pay
8
level . IAF, Tab 1 at 5 , PFR File, Tab 1 at 4 -5; cf. Goldberg , 97 M.S.P.R. 441, ¶ 9
(noting the appellant specifically alleged that there were two positions available
after his medical disqualification and closer to his original rate of pay and grade
than the posit ion to whi ch he was reassigned). The appellant has not set forth any
other evidence to establish that the agency would not accommodate her or
otherwise establish that discrimination caused her to accept the Air Traffic
Assistant position.
¶12 To the extent that the appellant argues that the basis for the Board’s
jurisdiction is the agency’s discriminatory failure to select her for positions to
which she applied following medical disqualification, she cannot establish
jurisdiction. An agency’s failure to select an ap plicant for a vacant position is
generally not appealable to the Board. Prewitt v. Merit Systems Protection
Board , 133 F .3d 885 , 886 (Fed. Cir. 1998). Given this general lack of
jurisdiction, the only circumstances under which an appellant may appeal a
nonselection to the Board are through other statutory means, such as under the
Veterans Employment Opportunities Act of 1998 (VEOA) or the Uniform ed
Services Employment and Reemployment Rights Act of 1994 (USERRA), or
through an individual right of action appeal under the Whistleblower Protection
Act (WPA) or the Whistleblower Protection Enhancement Act of 2012 (WPEA).
Becker v. Department of Veter ans Affairs , 107 M .S.P.R. 327 , ¶ 5 (2007). The
appellant did not raise any allegations under VEOA, USERRA, WPA, or WPEA ,
however, nor does she raise any such allegations on revie w. IAF, Tab 1; PFR
File, Tab 1. Moreover, the Board cannot consider an affirmative defense of
discrimination in the absence of an otherwise appealable action. See Hicks v.
U.S. Postal Service , 114 M.S.P.R. 232 , ¶ 13 (2010) ( stating that allegations of
discrimination and retaliation do not confer jurisdiction in the absence of an
otherwi se appealable action). Accordingly, we find that the appellant’s claims of
discrimination do not establish Board jurisdiction.
9
¶13 We conclude that the administrative judge properly found that the
appellant’s allegations of coercion were insufficient to establish that her
reduction in pay was involuntary , and we find that the appellant’s arguments on
review are without merit. Accordingly, we affirm the administrative judge’s
finding that the Board lacked jurisdiction over the appeal.
NOTICE OF APPEAL RI GHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with w hich to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appr opriate 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 a pplicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in ge neral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final deci sions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
within 60 calendar days of the date of issuan ce of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
followi ng address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of p articular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Cou rt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the serv ices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil a ction with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 representati ve receives this decision before
11
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, nati onal origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information f or U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternat ively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such r equest with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representat ive receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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 p etition 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 Ci rcuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit i s available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
If you are interested i n securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 websit es, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRITTON_JENNIFER_A_CH_0752_16_0492_I_1_FINAL_ORDER_1994916.pdf | 2023-01-20 | null | CH-0752 | NP |
3,756 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_MICHELLE_Y_SF_0353_16_0528_I_2_FINAL_ORDER_1994926.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHELLE Y. ANDERSON ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0353 -16-0528 -I-2
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Y. Anderson , Los Angeles, California, pro se.
Catherine V. Meek , Esquire, Long Beach, 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 d ecision, which
sustained the agency’s deni al of her request for restoration. For the reasons
discuss ed below, we DENY the appellant’ s petition for review, VACATE 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
initial decision, and DISMISS the appeal as untimely filed without good cause
shown .
BACKGROUND
¶2 On December 1, 2015, the appellant filed a formal complaint of
discrimination in which she alleged that the agency discriminated against her on
the basis of race, color , sex, age, and disability and retaliated against her for her
prior equal employment opportunity (EEO) activity when, beginning on July 28,
2015, it denied her a reasonable accommodation and did not allow her to work
because there was no work available wit hin her medical restrictions. Anderson v.
U.S Postal Service , MSPB Docket No. SF -0353 -16-0528 -I-I, Initial Appeal File
(IAF), Tab 8 at 21. On April 12, 2016, the agency issued its final agency
decision (FAD) in which it found that the appellant did not p rove that she was
subjected to discrimination and notified her that she had the right to file a Board
appeal within 30 days of her receipt of the FAD. Id. at 21 -46. The agency has
provided evidence that the FAD was delivered to the appellant’s address on
April 15, 2016. Id. at 47.
¶3 On May 27, 2016, the appellant mailed the instant Board appeal via
certified mail and asserted that she had received the FAD on April 25, 2016. IAF,
Tab 1 at 2 , 7. Without addressing the timeliness issue, the administrative j udge
found jurisdiction, conducted a hearing, and determined that the agency’s
decision not to fully restore the appellant during the periods from July 28 to
October 3, 2015, and from November 8, 2015, to June 30, 2016, was not arbitrary
and capricious. Anderson v. U.S Postal Service , MSPB Docket No. SF -0353 -16-
0528 -I-2, Refiled Appeal File (RAF), Tab 15, Tab 36, Initial Decision ( ID)
at 6-17. She also found that the appellant did not prove her claims of retaliation
for filing a grievance or engaging in EEO activity or her discrimination claims
based upon sex , age, or disability . ID at 17 -24.
3
¶4 The appellant has filed a petition for review along with a supplement to the
petition, the agency has responded in opposition to her petition, and the appellant
has replied. Anderson v. U.S Postal Service , MSPB Docket No. SF -0353 -16-
0528 -I-2, Petition for Review (PFR) File, Tabs 1, 3, 6, 9.2
¶5 On August 3, 2018, the Office of the Clerk of the Board issued a show
cause order sta ting that the appeal appeared to be untimely and requesting that the
parties provide the Board with any evidence and argument regarding whether the
appeal was timely or whether there is good cause for the delay. PFR File, Tab 11
at 4. The order provided that the appellant must file her response within 20 days
of its issuance and that the agency’s response must be filed within 20 days of the
date of service of the appellant’s response. Id. at 4 -5. The appellant timely
2 With her petition, the appellant has submitted agency policies and training materials
regarding injury compensation , reasonable accommodation, and absence without leave
(AWOL), including sample forms and reference materials , and a November 2016 leave
request . PFR File, Tab 1 at 27-84. In the suppl ement to her petition , she has submitted
a September 2017 letter to a claims examiner stating that, although the office denied her
claim for compensation on the basis that her time reflected that she was AWOL, the
time had since been changed to leave without pay status ; the po sition descriptions of a
Claims and I nquiry Clerk and Mail Rewrapper; a portion of a glossary of agency terms ;
and a September 2017 summary of a step 2 grievance meeting in which the appellant’s
grievance challenging her conversion to an “unassigned regula r” was denied . PFR File,
Tab 3 at 2-7, 17. She also has submitted an August 9, 2017 letter stating that she was
awarded a bid job with a retroactive effective date in September 2009, August 2017
medical documents , and an August 20, 2017 grievance form , all of which w ere created
after the record closed below on June 7, 2017, but before the August 30, 2017 initial
decision . Id. at 8 -16; ID at 1. Additionally, she has submitted a motion to supplement
the record with her statement that, in October 2017, the agency provided work to
limited -duty employees that included the same duties that she had requested to perform.
PFR File, Tab 4 at 3 -4. We do not consider this evidence and deny the appellant’s
motion because the evidence is either not new or is not mat erial to the dispositive issues
in this appeal . See Cleaton v. Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015)
(stating that 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 an d
the evidence contained therein is of sufficient weight to warrant an outcome different
from that of the initial decision ), aff’d , 839 F.3d 1126 (Fed. Cir. 2016). To the extent
that the appellant is seeking Board review of alleged denials of restoration arising
subsequent to June 30, 2016, she may wish to file a new Board appeal. We express no
opinion as to the timeliness of any such appeal.
4
mailed her response on August 23, 20 18. PFR File, Tab 12; see 5 C.F.R.
§ 1201.4 (l). The agency timely replied to the response on September 12, 2018.
PFR File, Tab 13.
DISCUSSION
¶6 When an appellant has filed a timely formal complaint of discrimination
with the agency, a subsequent Board appeal must be filed within 30 days after the
appellant receives the agency’s FAD. 5 C.F.R. § 1201.154 (b); see Little v. U.S.
Postal Service , 124 M.S.P.R. 183 , ¶ 7 (2017). Generally, if a party does not
submit an appeal within the applicable time li mit, it will be dismissed as untimely
filed unless there is a good cause for the delay. See Little , 124 M.S.P.R. 183 ,
¶ 10; 5 C.F.R. § 1201.22 (c). An appellant must prove, by preponderant evidence,
that her appeal was timely filed.3 5 C.F.R. § 1201 .56 (b)(2)(i)(B).
¶7 In light of the above, we find that the appeal is untimely filed. The
agency’s FAD notified the appellant that she had 30 days to file a Board appeal.
IAF, Tab 8 at 44. She was required to submit her Board appeal within 30 days of
receiving the decision. 5 C.F.R. § 1201.154 (b). The agency submitted evidence
that the appellant received the FAD on April 12, 2016. IAF, Tab 8 at 47.
However, the appellant asserted in her initial appeal that she had received the
FAD on April 25, 2016. IAF, Tab 1 at 2. Even accepting the appellant’s
assertion regarding the receipt date as true, her appeal would still be u ntimely.
The date of filing by mail is determined by the postmark date . 5 C.F.R.
§ 1201.4 (l). Here, h er appeal was postmarked May 27, 2016. IAF, Tab 1 at 7.
Accordingly , we find that she did not file her appeal within 30 days of receipt.
Instead , she mailed it 32 days after April 25, 2016, when she asserts that she
received the FAD , or 45 days after the agency evidence indicates that she
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
recei ved it. IAF, Tab 1 at 7, Tab 8 at 47. Thus, even accepting her argument
regarding the receipt date as true, her appeal was untimely filed by at least
2 days .
¶8 We also find that the appellant did not establish good cause for her delay in
filing. To establish good cause for the untimely filing of an appeal, a party must
show that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. See Little , 124 M.S.P.R. 183 , ¶ 10. In determining
whether the appellant has established good cause for an untimely appeal, the
Board will consider such factors as the length of the delay, the reasonableness of
her excuse and her showing of diligence, w hether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unfavorable
casualty or misfortune which similarly shows a causal re lationship to her inability
to timely file her claim. Id.
¶9 In her response to the show cause order, the appellant states that, after she
received the notice of her right to file on April 25, 2018, she tried several times to
contact her union representative and that sh e was not f amiliar with the Board ’s
procedures . PFR File, Tab 1 2 at 2-3. Further, she states that she cannot afford
representation. Id. at 3. She also states that, although she was not hospitalized,
she was ill. Id.
¶10 A lack of familiarity w ith the Board ’s administrative practices does not
constitute good cause for waiver of the Board ’s timeliness requirements. See
Mata v. Office of Personnel Management , 53 M.S.P.R. 552 , 554 -55, aff’d ,
983 F.2d 1088 (Fed. Cir. 1992) (Table) . Additionally, a party’ s inability to
obtain counsel does not establish good cause for an untimely filing . See Innocent
v. Office of Personnel Management , 108 M.S.P.R. 453, ¶ 10, aff’d , 296 F. App’x.
925 (Fed. Cir. 2008) (per curiam) . Further, the appellant has not described how
her illness prevented her from filing her appeal. See Alford v. Office of Personnel
Management , 108 M.S.P.R. 414 , ¶ 10 (2008) (stating that a doctor’s statement
6
that the appellant was under his care did not establish good cause for h er untimely
petition for appeal based on illness, when the statement contained no explanation
as to how the medical condition prevented her from filing a time ly appeal). Even
considering the appellant’s pro se status, we find that the appellant has not
presented evidence of due diligence or the existence of circumstances beyond her
control that affected her ability to file her appeal such that we should waive the
filing deadline . See Gonzalez v. Department of Veterans Affairs , 111 M.S.P.R.
697, ¶ 11 (2009) (stating that the Board has consistently denied a waiver of the
filing deadline if a good reason for the delay is not shown, even whe n the delay is
minimal and the appellant is pro se ).
¶11 Accordingly, we find that the appellant has not established good cause for
her filing delay. See Schuringa v. Department of the Treasury , 106 M.S.P.R. 1 ,
¶¶ 9, 14 & n.* (2007) (declining to excuse a 4 -day delay in filing an ap peal whe n
the pro se appellant’ s submissions did not support a finding that she was
medically prevented from timely filing her appeal or from requesting an extension
of time) .
¶12 Thus, we vacate the initial decision and instead dismiss this appeal as
untimely filed without a showing of good cause for the delay. See, e.g. , Dotson v.
U.S. Postal Service , 41 M.S.P.R. 412 , 413 -16 (1989) (af firming the initial
decision that dismissed the appeal as untimely by 1 day), aff’d , 895 F.2d 1420
(Fed. Cir. 1990) (Table) . This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113(c) (5 C.F.R. § 1201.113(c)).
7
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your rep resentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
9
to waiver of any req uirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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.
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.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ANDERSON_MICHELLE_Y_SF_0353_16_0528_I_2_FINAL_ORDER_1994926.pdf | 2023-01-20 | null | SF-0353 | NP |
3,757 | https://www.mspb.gov/decisions/nonprecedential/BUTLER_TIMOTHY_W_DA_1221_19_0077_W_1_FINAL_ORDER_1994938.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY W. BUTLER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-1221 -19-0077 -W-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy W. Butler , San Antonio, Texas, pro se.
G. Houston Parrish , Esquire, Fort Knox, Kentucky, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt r ecused 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 corrective action in his individual right of action (IRA) appeal. 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
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. The appellant’s request for corrective action is
GRANTED.
BACKGROUND
¶2 Effective July 27, 2018, the agency removed the appellant from his GS -7
Human Resources As sistant position based on four charges of alleged
misconduct. Initial Appeal File (IAF), Tab 13 at 7 -20. He thereafter filed an IRA
appeal in which he contended that the removal and the proposed removal that
preceded it constituted reprisal for whistlebl owing. IAF, Tab 1. The
administrative judge found that the appellant established jurisdiction over the
appeal. IAF, Tab 28 at 1-2.
¶3 After a hearing, the administrative judge found that the appellant proved by
preponderant evidence that a July 24, 2017 email disclosure was protected, but
failed to prove that his June 1, 2018 administrative grievance was protected. IAF,
Tab 55, Initial Decision (ID) at 7-12. She further found that the appellant proved
by preponderant evidence that his January 5, 2018 c ommunication with his
congressional representative was protected activity. ID at 12-13. She found that
both the proposed removal and removal constituted perso nnel actions within the
meaning of 5 U.S.C. § 2302 (a), and that the appellant proved by preponderant
evidence that his protected activity2 was a contributing factor in those personnel
actions. ID at 13-15. She further found, however, that the agency proved by
clear and convincing evidence that it would have taken the same action s absent
any protected activity, and she denied the appellant’s request for corrective
action. ID at 15-25.3
2 Hereinafter, we use the term “protected activity” to refer both to the appellant’s
protected disclosure and to his protected communications with Congress.
3 During the pendency of the appeal, Congr ess enacted the National Defense
Authorization Act for Fiscal Year 2020, Pub. L. No. 116 -92, § 5721, 133 Stat. 1198,
2175 ( 2020 NDAA), which amended 5 U.S.C. § 2302 (b)(8) by adding
section 2302(b)( 8)(C). Thereunder, the 2020 NDAA expressly provides protection for
disclosures to Congress under certain circumstances. We need not consider the
3
¶4 The appellant petitions for review of the initial decision. Petition for
Review (P FR) File, Tab s 1-2. The agency responds in opposition to the petition
for review. PFR File, Tab 4 .
ANALYSIS
¶5 In order to establish a prima facie case of reprisal for whistleblowing, the
appellant must prove by preponderant evidence that he made a disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and 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) . Webb v.
Department of the Interior , 122 M.S.P.R. 248 , ¶ 6 (2015) . The administrative
judge here found that the appellant made a prima facie case of whistleblow ing.
ID at 7-15. This finding is supported by the record a nd we see no reason to
disturb it.
¶6 Once the appellant makes out a prima f acie case, the agency must show by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the protected activity . Webb , 122 M.S.P.R. 248 , ¶ 6. 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 whistleblowing ,
the Board will c onsider the following factors: (1) the strength of the agency ’s
evidence in suppo rt 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 w ho are otherwise similarly situated. Carr v. Social
Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
applicability or retroactivity of this expansion of section 2302(b)(8) because the
appellant’s disclosure to Congress would be protected under pre - and post -2020 NDAA
law.
4
Carr factor 1
¶7 As to Carr factor 1, the administrative judge found that the agency
possessed strong evidence in support of its charges. The agency brought four
charges against the appellant. The first was that he violated an agency policy
when he met alone behind closed doors wi th a female cadet . IAF, Tab 13 at 16.
The administrative judge found that a number of other agency officials, including
the proposing official, had also violated the policy and received mild discipline,
leading her to the conclusion that the policy was n ot well -known or not
consistently enforced. ID at 16-17. Th e third charg e involves slightly less than
3 days of absence without leave (AWOL) in December 2017 and January 2018.
IAF, Tab 13 at 16 -17. The agency has solid evidence in support of the third
charge, but it was clearly not the most important factor in the decision to remove
him.
¶8 Rather, the agency relied primarily on the second and fourth charges , both
of which arise from the same set of facts. The appellant was absent on Family
and Medical Leave Act (FMLA) leave in early 2018 to undergo surgery . When
his FMLA leave expired and he did not return to work, the agency sent him a
May 22, 2018 memorandum directing him to submit medical documentation to
support his continued absence and/or to ret urn to duty no later than June 5 , 2018.
IAF, Tab 13 at 21 -23. The appellant did not timely submit medical
documentation and did not return to duty. The agency charged him with failure to
follow written instructions/orders with one specification for his f ailure to provide
medical documentation and one specification for his failure to return to duty. Id.
at 16. T he agency also charged him with AWOL for 2 weeks beginning on
June 4, 2018,4 at which point it proposed to remove him. Id. at 17. Those facts
are not d isputed.
4 Monday, June 4, 2018 , was presumably a regularly scheduled duty day for the
appellant, but the May 22, 2018 memorandum did not direct him to return to work until
5
¶9 The administrative judge found that the agency’s order was lawful and the
appellant was required to follow it. ID at 17 -18. She did not consider, however,
whether and to what extent the second and fourth charges were duplicative. The
Board has held that charges of AWOL and failure to follow instructions by failing
to submit medical documentation to substantiate an alleged inability to work on
those same dates are duplicative and should be merged. Jones v. Department of
Justice , 98 M.S.P.R. 86, ¶ 16 (2004) . Similarly, we see little difference, if any,
between a failure to follow instructions to report for duty on a particular day and
AWOL for failing to appear at work for that same day.
¶10 Similarly, it is not clear that the agency can prove the fourth charge
(2 weeks of AWOL) by preponderant evidence. An AWOL charge cannot be
sustained if the appellant presents evidence to the Board that was not previously
presented to the agency showing that he was incapacitated for duty during the
relevant time period. Wesley v. U.S. Postal Service , 94 M.S.P.R. 277 , ¶ 18
(2003). If the employee has sufficient sick leave to cover the period in question,
the agency must grant the request when the employe e provides administratively
acceptable evidence of incapacitation, regardless of whether the employee has
complied with applicable leave procedures. Id. Even when the employee lacks
sufficient leave to cover his absence, an AWOL charge based on that abse nce
cannot be sustained if the agency abused its discretion in denying the employee’s
request for leave without pay . White v. Department of Housing & Urban
Development , 95 M.S.P.R. 299 , ¶ 17 (2003) .
¶11 The appellant contends that he submitted medical documentation to the
agency on July 10, 2018 , IAF, Tab 2 at 20 , and the agency acknowledges that it
had the appellant’s medical documentation in its possession at least by July 30,
2018 , IAF, Tab 54 at 8. The appellant’s medical documentation, whenever he
submitted it to the agency, is material to the charge of AWOL. The agency
June 5. Under the circumstances, it is not clear why the agency included June 4 in the
AWOL charge.
6
withheld its evidence that it received the documentation on July 30, 2018 , until
the hearing when it used an email dated July 30 to attempt to impeach the
appellant’s testimony through the testimony of another witness. The agency’s
representative informed the administrative judge that the email was not included
in the agency file or on its exhibit list, as it should have been, because the agency
did not provide a copy to counsel. Hearing Recording (HR), Track 3. Under the
circumstances, the administrative judge would have been well within her
discretion to reject the document when the agency submitted it into the record
after the close of the hearing. She did not do so, and she did not explain her
reasons. She also declined to make an explicit finding as to when, precisely, the
agency received the documentation. ID at 19 -20. Under the circumstances, we
find that the date on which the appellant provided his medical documentation to
the agency is an unresolved issue of fact.
¶12 As to the contents of the medical documentation, t he administrative judge
found it insufficien t to excuse the appellant’s absence because it contained
physical restrictions on driving and lifting that were not germane to the
appellant’s sedentary job duties. ID at 19-20. The medical documentation s tated
that the appellant was unable to work from May 15 to December 23, 2018, and
imposed physical restrictions, as noted above. IAF, Tab 2 at 20. However, the
record contains medical documentation covering earlier time periods when the
appellant was on FMLA leave and not working. IAF, Tab 2 at 17 -19. That
documentation also excuses the appellant from work and recommends that he
limit his driving, not sit for prolonged periods of time, and not lift heavy weights,
all of which are common recommendations for someone with the appellant’s
medical conditio n. Id. Read in the context of the earlier medica l documentation,
one could conclude that , in the documentation that the appellant submitted to the
agency, the appellant’s doctor was making recommendations about activities the
appellant should avoid generally , not merely limits on his job functions. The fact
that the appellant’s medical documentation mentioned physical restrictions that
7
were not applicable to his job is not a valid reason to reject it. Moreover, the
documentation stated that the app ellant was unable to work beginning on May 15,
2018 , and, although it did not provide a reason , we know that the appellant had
recently undergone surgery and surgery generally requires some time for
recovery . IAF, Tab 2 at 20. The medical documentation w as certainly ambiguous
and perhaps warranted further inquiry , but we find that it is not obviously
unacceptable.
¶13 We further note that there is no evidence in the record to show whether the
appellant had exhausted his leave. He may well have, given that he had only
recently been on extended FMLA leave,5 but this would be a matter for the
agency to prove , and it has not submitted any evidence in this regard .
¶14 Independent of proffering strong evidence in support of its charges, the
agency must also submit str ong evidence in support of its penalty determination.
Whitmore v. Department of Labor , 680 F.3d 1353 , 1374 (Fed. Cir. 2012) (stating
that “ the agency must still prove by clear and convincing evidence that it would
have imposed the exact same penalty in the absence of the protected disclosures”)
(emphasis in original) . Here, t he agency’s penalty determination betrays some
weaknesses . At the hearing, the agency proffered virtually no Douglas6 testimony
beyond pointing out that the appellant’s absence had an adverse impact on the
agency because others had to perform his duties and because determining whether
he w as going to report to wo rk each day was disruptive and time consuming. H R,
Track 4 (testimony of the deciding official).
¶15 In a “Brief Sheet,” apparently prepared by the agency’s human resources
office for the benefit of the deciding official, the deciding official was informed
that the appellant was a 9 -year employee with no prior discipline . IAF, Tab 13
5 The appellant testified that he applied for leave under the Leave Transfer Program, so
he presumably had at best very little leave available to him. HR, Track 2 (testimony of
the appellant ).
6 Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981).
8
at 12. The deciding official’s written Douglas analysis mentions that the
appellant has no prior discipline but does not mention his length of service and
states that there a re no mitigating factors. IAF, Tab 13 at 14 -15. In his most
recent performance rating of record, the appellant was rated “Excellence ” in two
critical elements and “Success” in the two remaining critical elements,7 with a
summary rating of “Success ful.” IA F, Tab 17 at 110 -11. Despite this good
record of recent performance, the written Douglas analysis refers to the
appellant’s “sub -par performance” and his failure to correct his performance.
IAF, Tab 13 at 15. The removal penalty is consistent with the a gency’s table of
penalties, and with the penalty imposed on other employees, generally for longer
periods of AWOL as discussed below, but the agency does not appear to have
considered whether a lesser penalty might have had a corrective effect on the
appel lant’s behavior.
¶16 Further, the written Douglas analysis stated that the appellant’s misconduct
caused “irreparable” damage. IAF, Tab 13 at 15. At the hearing, the deciding
official explained that the reason for the policy against male employees having
one-on-one c losed -door meetings with female cadets is to reduce the possibility
that something might happen that could cause irreparable harm . H R, Track 4
(testimony of the deciding official) . There is no evidence, however, that anything
untoward happened during the closed -door meeting under lying charge 1. Thus,
although there is certainly support for the proposition that the appellant’s
absences from the workplace caused e xtra work for others and that his failure to
cooperat e with his supervisor over leav e matters had an impact on his working
relationships, we see no support for the statement that the appellant’s misconduct
caused “irreparable” damage.
¶17 We also note that the deciding official denied the appellant’s request for an
extension of time to reply to the notice of proposed removal because the appellant
7 The agency uses a four-level rating system.
9
presented his request at the last minute and did not provide an adequate reason for
the request . IAF, Tab 17 at 47 -48; HR , Track 4 (testimony of the deciding
official) . At the hearing, the deciding official testified that the appellant did not
offer any reason why he needed an extension other than he wanted one and the
deciding official was not required to grant an extension, so he did not grant
one. Id.
¶18 In sum, there is an argument to be made that some of the a gency’s charges
are duplicative; the appellant has evidence that he was incapacitated for duty that
is at least equivocal , which the agency had in its possession at best before it
removed the appellant and at worst 3 days after it removed the appellant , but
which it inexplicably failed to provide to counsel , and failed to submit to the
Board until after the hearing ; the agency appears to have given little or no
consideration to progressive discipline or to mitigating Douglas factors , and
engaged in at least a little exaggeration on one of the aggravating factors ; and,
given the discretion to be strict or lenient in granting a request for an extension of
time, it chose to be strict. None of this is to say that the agency’s charges have
no merit or that it would be unable to prove them by preponderant evidence. We
find, however, that there are demonstrable weaknesses in its case. Carr factor 1
weighs against the agency.
Carr factor 2
¶19 The administrative judge found that the agency’s witness es testified
credibly that the y suffered no negative consequences from the appellant’s
protected activity and it played no part in either the proposed removal or the
removal action. ID at 21-25. The Federal Circuit has cauti oned that the Board
interprets Carr factor 2 too narrowly when it focuses solely on the personal
motives of the individual agency managers who may have been implicated by the
employee’s protected activity rather than on the agency’s institutional motive to
retaliate based on protected activity that implicates the perceived reputation of
10
the agency or agency component. Robinson v. Department of Veterans Affairs ,
923 F.3d 1004 , 1019 -20 (Fed. Cir. 2019); Miller v. Department of Justice ,
842 F.3d 1252 , 1261 -62 (Fed. Cir. 2016) . In this regard, the record contains an
email from the deciding official dated 4 days after the appellant made his first
disclosure that chastised the appellant for going out of the chain of command and
indicated that he should always inform his chain of command before he takes an
issue out of the chain of command. IAF, Tab 17 at 46. At the hearing, the
deciding official testified that the appellant should have informed his superiors
that he was going to take his concerns outside the chain of command and that
going outside the chain of command “sl ows things down” because the chain of
command has to be consulted anyway. HR, Track 4 (testimony of the deciding
official). The agency’s interest in preserving the chain of command and the
deciding official’s interest in not being put in the position of having to answer to
his superiors for those under his command who violate the chain of command
betrays at least a slight motive to retaliate. Carr factor 2 weighs slightly against
the agency.
Carr factor 3
¶20 Turning to Carr factor 3, the administrative judge found that the agency
submitted evidence that it has removed other employees for attendance -related
charges, but did not submit any evidence as to whether these employees were
whistleblowers. ID at 25 n.13. She conclud ed that the absence of evidence
concerning how the agency treated similarly situated non -whistleblowers who
committed similar misconduct meant that this factor was not a significant factor
in the analysis. Id.
¶21 As the administrative judge correctly noted, the absence of any evidence
concerning Carr factor 3 can, in appropriate circumstances, remove that factor
from the analysis. Miller , 842 F.3d at 1262; Whitmore , 680 F.3d at 1374.
However, this is not a case in which there is no evidence as to how the a gency
11
treats other employees. The agency here submitted evidence showing that it
removed four employees bet ween A ugust 2016 and July 2018 for
attendance -related charges. IAF, Tab 33 at 7 -40. Three of those removals
involved substantially longer periods of absence than the appellant accumulated.
There is no evidence in the record to explain why the agency dec ided to propose
removal against the appellant after 2 ½ weeks of unexcused absence but waited
7 weeks to propose removal for another, an d nearly a fu ll year to propose removal
for yet another employee. The record shows that the agency treated the appellant
differently, but does not show the reason for the difference in treatment. Having
submitted evidence concerning how it treated other employees, the agency took a
risk in failing to fully explain the context of that evidence. Cf. Siler v.
Environmental Protection Agency , 908 F.3d 1291 , 129 9 (Fed. Cir. 2018) (stating
that the “risk asso ciated with having no evidence o n the record ” for a particular
factor falls o n the G overnment (quoting Miller , 842 F.3d at 1262 )); Miller ,
842 F.3d at 1262 (stating that the Government ’s failure to produce evidence on
this factor “may be at the agency’ s peril ” considering the Government’s
advantage in accessing this type of evidence (quoting Whitmore , 680 F.3d
at 1374 )); Whitmore , 680 F.3d at 1374 (holding that, to the extent evidence o n
Carr factor 3 exists, “the agency is required to come forward with all reasonably
pertinent evidence ”; the “[f]ailure to do so may be at the agency’s peril ”). We
find, therefore, that Carr factor 3 weighs against the agency.
¶22 Based on the foregoing, we find that the agency failed to prove by clear and
convincing evidence that it would have removed the appellant absent his
protected activity .
ORDER
¶23 We ORDER the agency to cancel the appellant's removal and to restore the
appellan t effective July 27, 2018. See Kerr v. National Endowment for the Arts ,
12
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶24 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 day s 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.
¶25 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).
¶26 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 carri ed 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).
¶27 For agencies whose payroll is administered by either th e 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
13
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set f orth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requir ements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequenti al damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
14
NOTICE TO THE PARTIE S
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum wit h which to file. 5 U.S.C. § 7703 (b).
Although 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 la w 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 possib le choices of review
below to decide which one applies to your particular case. If you have questions
8 Since the issuance of the initial decision in this matter, the Board may have u pdated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of iss uance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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
16
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
17
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appea ls
for the Federal Circuit
9 The original statutory provision that provided for judicial review of certain
whistleblow er claims by any court of 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 i n certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’ s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determinatio n, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of al l amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, wor kers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave 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).
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 c lear 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. | BUTLER_TIMOTHY_W_DA_1221_19_0077_W_1_FINAL_ORDER_1994938.pdf | 2023-01-20 | null | DA-1221 | NP |
3,758 | https://www.mspb.gov/decisions/nonprecedential/INTLEHOUSE_PAMELA_J_DE_0752_16_0468_I_2_FINAL_ORDER_1994941.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAMELA J. INTLEHOUSE ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0752 -16-0468 -I-2
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamela J. Intlehouse , Topeka, Kansas, pro se.
Michael E. Anfang , Esquire, Kansas City, Missouri, for the agency.
Starla R. Larson -Pfeifer , Esquire, Sioux Falls, South Dakota, 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 involuntary retirement appeal for lack of jurisdiction . Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
durin g either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now th e Board’s
final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant reasserts that the agency left her no choice but to
retire when it denied her various requests for leave , makes some new allegations
regarding her claim , and submits copies of emails relating to her allegations .
Petition for Review File, Tab 1. Regarding any assertions she made below that
were addressed by the administrative judge, we agree , for the reasons s tated in the
initial decision, that she failed to make a nonfrivolous allegation of Board
jurisdiction. We decline to consider any argument or evidence that she submits
for the first time on review because she has failed to show that it was unavailable,
despite her due diligence, when the record closed . See Hodges v. Office of
Personnel Management , 101 M.S.P.R. 212 , ¶ 7 (2006); 5 C.F.R. § 1201.115 (d).
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 summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision befor e
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U .S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cou rt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Mer it Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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
Contact information for the courts of appeals can be 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 | INTLEHOUSE_PAMELA_J_DE_0752_16_0468_I_2_FINAL_ORDER_1994941.pdf | 2023-01-20 | null | DE-0752 | NP |
3,759 | https://www.mspb.gov/decisions/nonprecedential/SABO_KEVIN_M_DC_1221_20_0386_W_1_FINAL_ORDER_1994947.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN M. SABO,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DC-1221 -20-0386 -W-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin M. Sabo , Front Royal, Virginia, pro se.
Chen Song , 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 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 3; Initial Appeal File, Tab 14, Initial
Decision. For the reasons set fort h below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE,” which was signed by
both parties and effective January 13, 2023 . PFR File, Tab 6 at 6, 13. The
document provides, among other things, for the dismissal of the appeal. Id. at 6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they unde rstand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. D epartment of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have b een entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 6 at 12 . Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Titl e 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried o ut 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 w hy the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise whic h option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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 Fed eral 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 l ater 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:
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 pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, si gned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SABO_KEVIN_M_DC_1221_20_0386_W_1_FINAL_ORDER_1994947.pdf | 2023-01-20 | null | DC-1221 | NP |
3,760 | https://www.mspb.gov/decisions/nonprecedential/GAUVREAU_CAROL_SF_1221_18_0229_W_1_FINAL_ORDER_1994954.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAROL GAUVREAU,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-1221 -18-0229 -W-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke , Esquire, Atlanta, Georgia, for the appellant .
Michael L. Halperin , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINA L ORDER
¶1 The appellant has petitioned for review of the August 3, 2018 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 30, Initial Decision. For the reasons set forth below, we DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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, on November 16, 2022, the
agency submitted a copy of a pleading previously filed in the appellant’s other
MSPB appeal, Gauvreau v. Department of the Army , MSPB Docket
No. SF-0752 -19-0157 -I-1. PFR Fil e, Tab 6. The pleading explained that the
parties had separately executed both a settlement agreement and an amendment
to the settlement agreement , providing for the withdrawal of MSPB Docket
No. SF-0752 -19-0157 -I-1 and the instant appeal, and attached th e settlement
agreement and amendment. Id. at 7. On March 27, 2019, the administrative
judge in MSPB Docket N o. SF -0752 -19-0157 -I-1 dismissed that appeal with
prejudice pursuant to the settlement agreement. Gauvreau v. Department of the
Army , MSPB Docket No. SF -0752 -19-0157 -I-1, Initial Decision (Mar. 27, 2019) .
¶3 Reviewing the settlement agreement now that it has been filed in the instant
appeal, we note that the original agreement was signed and dated by the parties
in February 2019, and the amendment was signed and dated by the parties in
March 2019. PFR File, Tab 6 at 11, 17 . The settlement agreement provides,
among other things, for the dismissal of the instant appeal. Id., at 14.
¶4 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
3
¶5 Here, we find that the parti es have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 6 at 15 (providing for
enforcement by the Equal Employment Opportunity Commiss ion). 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.
As the parties do not intend for the Board to enforce the settlement agreem ent,
we need not address the additional considerations regarding enforcement and do
not enter the settlement agreement into the record for enforcement by the Board.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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 o f how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you 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 must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GAUVREAU_CAROL_SF_1221_18_0229_W_1_FINAL_ORDER_1994954.pdf | 2023-01-20 | null | SF-1221 | NP |
3,761 | https://www.mspb.gov/decisions/nonprecedential/FALVEY_TIMOTHY_D_AT_1221_17_0167_W_1_FINAL_ORDER_1994963.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY D. FALVEY,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
AT-1221 -17-0167 -W-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy D. Falvey , Charleston, South Carolina, pro se.
Marianne Perciaccante , Esquire, Washington, D.C., for the agency.
Elizabeth R. Amory , Esquire, 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 his individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant asserts that he raised nonfrivolous allegations of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
fact to establish Board jurisdiction. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute 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 APP EAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is mos t
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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 pos sible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses th e services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a c ivil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see 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 decisi on before
you do, then you must file with the 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 disab ling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decis ion before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Oper ations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 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 Fed eral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inter ested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appe llants before the 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 | FALVEY_TIMOTHY_D_AT_1221_17_0167_W_1_FINAL_ORDER_1994963.pdf | 2023-01-20 | null | AT-1221 | NP |
3,762 | https://www.mspb.gov/decisions/nonprecedential/ISLAM_MOHAMMAD_K_DC_0752_17_0635_I_1_FINAL_ORDER_1994967.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MOHAMMAD K. ISLAM,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0752 -17-0635 -I-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mohammad K. Islam , Stafford, Virginia, pro se.
Dorothy Campbell , 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
dismissed his appeal of the agency’s suspension action as untimely filed without
good cause shown . On petition f or review, the appellant raises no arguments
regarding the timeliness of this suspension appeal. Rather , his arguments appear
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 co ncern a separate agency action —an alleged demotion. 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 and
AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the app ropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on whic h option is most
2 More than 3 years after the close of the record on review, the appellant filed a motion
seeking to file additional information which would make his petition for review “more
appealing and reasonable.” Petition for Review File, Tab 5 at 5; 5 C.F.R.
§ 1201.114 (a)(5) . We DENY the motion because the appellant has not shown that the
additional pleading would contain evidence or argument that is new and material and
was not readily available before the record closed. See Durr v. Department of Veterans
Affairs , 119 M.S.P.R. 195 , ¶ 23 (2013); see also 5 C.F.R. § 1201.114 (a)(5), (k).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immedia tely review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an a ppeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neit her endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed t hat you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 re presentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any re quirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excludi ng
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 representa tive receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appe als for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
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 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 | ISLAM_MOHAMMAD_K_DC_0752_17_0635_I_1_FINAL_ORDER_1994967.pdf | 2023-01-20 | null | DC-0752 | NP |
3,763 | https://www.mspb.gov/decisions/nonprecedential/CHIN_HONG_HENRY_NY_4324_17_0202_I_1_REMAND_ORDER_1994972.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HENRY CHIN HONG,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.
DOCKET NUMBER
NY-4324 -17-0202 -I-1
DATE: January 20, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lawrence Tomscha , New York, New York, for the appellant.
Nicole Ludwig , Esquire, New York, New York, 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
dismissed for lack of jurisdiction his appeal under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons
discussed below, we GRANT th e appellant’s petition for review and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 case to the New York Field Office for further adjudication in accor dance with
this Remand Order.
BACKGROUND
¶2 The appellant is a veteran serving as a GS -12 Architect with the agency.
Initial Appeal File (IAF), Tab 1 at 1. The appellant filed an appeal with the
Board alleging that he was being harassed because of his veterans’ status in
violation of USERRA . IAF, Tab 1 at 4, 6, 8 -9, Tab 4 at 4.
¶3 Specifically, the appellant asserted that , because he is a veteran, his
supervisor misconstrued his statements during a meeting as indicating that he was
suicidal and then stated that belief to coworkers and a hospital wh ere the
appel lant was purportedly a patient. IAF, Tab 1 at 8, Tab 4 a t 4-5, Tab 6 at 4 ,
Tab 7 at 17. According to the appellant , based on their belief that he was
suicidal, his superiors denied him entry into his workplace and forc ed him to
telework , rea ssigned an integral aspect of his work, threatened him with an
unacceptable rating, and negatively affected his potential for promotion . IAF,
Tab 1 at 8 -9, Tab 4 at 7 , Tab 6 at 4 -5. He also alleged that an agency manager
shouted near many employees that he “wouldn’t want to be in a f*cking fox ho le”
with the appellant. IAF, Tab 4 at 5 .
¶4 The administrative judge issued an order setting forth the jurisdictional
elements of a USERRA claim and directing the appellant to file a statement
addressing the Board’s jurisdiction over his appeal. IAF, Tab 3. After
considering the parties’ responses, the administrative judge dismissed the appeal
for lack of jurisdiction without holding the appellant’s requested hearing. IAF,
Tab 10, Initial Decision (ID) at 1 . She found that he failed to nonfrivolously
allege both that he lost a benefit of employment and that the agency’s actions
were motivated by his military service. ID at 4 -8. She also concluded that he
failed to state a claim upon which relief could be granted. ID at 8. The appellant
has filed a petition for review, essentially reiterating the allegations of
3
harassment he made below and setting forth some new allegations. Petition for
Review (PFR) File, Tab 1.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has established the Board’s jurisdiction over his USERRA hostile
work environment claim.
¶5 There are two types of cases that arise under USERRA: reemployment
cases under 38 U.S.C. §§ 4312 -4318; and discrimination cases under 38 U.S.C.
§ 4311 (a) and (b). Bostwick v. Department of Agriculture , 122 M.S.P.R. 269 , ¶ 5
(2015). Here, the appellant has brought a discrimination case under section
4311(a). IAF, Tab 6 at 4. That section p rovides, in relevant part, that “[a] person
who . . . has performed . . . serv ice in a uniformed service shall not be denied
initial employment, reemployment, retention in employment, promotion, or any
benefit of employment by an employer on the basis of that . . . performance of
service.” 38 U.S.C. § 4311 (a); Beck v. Department of the Navy ,
120 M.S.P.R. 504, ¶ 7 (2014).
¶6 To establish jurisdiction over a USERRA discrimination claim before the
Board, an appellant must nonfrivolously allege that (1) he performed duty or has
an obligation to perform duty in a uniformed service of the United States; (2) the
agency denied him in itial employment, reemployment, retention, promotion, or
any benefit of employment; and (3) the denial was due to his performance of duty
or obligation to perform duty in the uniformed service. Beck , 120 M.S.P.R. 504,
¶ 8. The Board employs a liberal approach in determining whether an appellant
has established the Board’s jurisdiction under USERRA, and the relative
weakness of an appellant’s assertions in support of his claim is not a basis for a
jurisdictional dismissal. Id. Rather, if an appellant fails to develop his
contentions, his claim should be denied on the merits. Id. Once an appellant has
established the Board’s juri sdiction over his USERRA appeal, he has a right to a
hearing on the merits of his claim. Gossage v. Department of Labor ,
118 M.S.P .R. 455 , ¶ 10 (2012).
4
¶7 We agree with the administrative judge that the appellant has
nonfrivolously alleged that he performed duty in a uniformed service of the
United States and has thus satisfied the first jurisdictional element of his
discrimination clai m. ID at 4; IAF, Tab 4 at 11. For the reasons that follow, we
find that the appellant also satisfied the second and third jurisdictional eleme nts
of his discrimination claim and that a remand is therefore required to provide the
appellant his requested h earing on the merits.
¶8 In finding that the appellant failed to satisfy the second jurisdictional
element ; namely, that the agency denied him any benefit of employment, the
administrative judge seemed to consider whether some of the discrete allegations
made by the appellant would, individually , constitute a lost benefit of
employment. ID at 4 -6. Although the appellant did not explicitly argue below
that his various allegations should be consid ered together as a whole, we find that
it would be appropriate to do so to determine whether he has made a nonfrivolous
allegation of a hostile work environment under USERRA. To establish the
Board’s jurisdiction over a USERRA hostile work environment claim, an
appellant must nonfrivolously allege that he was subjected to a pattern of ongoing
and persistent harassing behavior based on his military service that was
sufficiently seve re or pervasive to alter the terms and conditions of employment.
Peterse n v. Department of the Interior , 71 M.S.P.R. 227 , 239 (1996); see also
Kitlinski v. Department of Justice , 123 M.S.P.R. 41 , ¶ 19 (2015), vacated in part
on other grounds , 857 F.3d 1374 (Fed. Cir. 2017).
¶9 As previously indicated , the appellant has alleged that , because he is a
veteran, his sup eriors slandered him as suicidal to his coworkers and others and
that, based on their belief that he was suicidal , denied him entry into his
workplace and forced him to telework , reassigned an integral aspect of his work,
threatened him with an unacceptable rating, and negatively affected his potential
for promotion . IAF, Tab 1 at 8 -9, Tab 4 at 7, Tab 6 at 4 -5. In addition, as noted,
according to the appellant an agency manager shouted to many employees that he
5
“wouldn’t want to be in a f *cking fox hole” with the appellant. IAF, Tab 4 at 5.
Taken together as a whole, we find that the appellant’s allegation s, if proven,
could establish a pattern of ongoing and persistent harassing behavior sufficiently
severe or pervasive to alter the terms and conditions of his employment. See
Petersen , 71 M.S.P.R. at 235. Although a failure by the appellant to develop hi s
contentions could lead to a denial of his claim on the merits, we find that he has
made a nonfrivolous allegation of a hostile work environment under USERRA.2
Beck , 120 M.S.P.R. 504 , ¶ 8.
¶10 Regarding th e third jurisdictional element; namely, that the denial of any
benefit of employment was due to his performance of duty or obligation to
perform duty in the uniformed service , the appellant indicated that his superiors
linked his military service with suicidal tendencies and believed that they could
create a “believable -conviction” that he was suicidal because he is a veteran.
IAF, Tab 1 at 6, Tab 4 at 4, Tab 6 at 4. He furthe r suggests that he would never
have been asked questions about his state of mind and whether he was suicidal
were it not for the fact that he is a veteran. IAF, Tab 1 at 6, 8, Tab 4 at 4 -5,
Tab 6 at 4. The appellant also alleged that non veteran employees have never
been questioned or treated in the way he was and that a manager shouted a
negative comment about him that referred to his military service . IAF, Tab 4
at 5, 7-8. Under the Board’s liberal approach to determining whether an appellant
has estab lished jurisdiction under USERRA , we find that the appellant has
nonfrivolously alleged that his military service was a motivating factor in the
2 Among other things, the administrative judge found that the appellant’s own
admission —that he told the agency that he sometimes thinks of harming himself or
others —weighs against a finding that the appellant nonfrivolously alleged that the
agency slandered him. ID at 6; IAF, Tab 1 at 8. Although the appellant’s admissions in
this regard may make his assertions in support of his claim relatively weak, such a
relative weakness should not serve as a basis for a jurisdictional dismissal. See Beck ,
120 M.S.P.R. 504 , ¶ 8.
6
agency’s harassment of him . See Beck , 120 M.S.P.R. 504 , ¶ 8; Swidecki v.
Department of Commerce , 113 M.S.P.R. 168 , ¶ 9 (2010).
¶11 Because jurisdiction has been established, the appellant is entitled to the
hearing he sought . See Gossage , 118 M.S. P.R. 455 , ¶ 12. Accordingly, a remand
to the adminis trative judge is appropriate. On remand, the appellant must prove
by preponderant evidence that his military status was at least a motivating or
substantial factor in the agency’s decision to deny him a ny benefit of
employment. Id. The appellant may meet this burden by using direct or indirect
evidence.3 Id. Discriminatory motivation under USERRA may be reasonably
inferred from such circumstantial evidence as temporal proximity between the
appellant’ s military activity and the adverse employment action, “inconsistencies
between the proffered reason and other actions of the employer, an employer’s
expressed hostility towards members protected by the statute together with
knowledge of the [individual’s] military activity, and disparate treatment of
certain [individuals] compared to other [individuals] with similar work records or
offenses.” Id. (quoting Sheehan v. Department of the Navy , 240 F.3d 1009 , 1014
(Fed. Cir. 2001) ). If the appellant meets his burden, the burden shifts to the
agency to prove that legitimate reasons, standing alone, would have induced it to
take the same action. Gossage , 118 M.S.P.R. 455, ¶ 12.
The appellant has stated a claim for which relief can be granted.
¶12 The administrative judge also f ound that the appellant failed to state a claim
for which relief can be granted because he did not assert lost wages or other
benefits. ID at 8 -9. The Board’s remedial authority under USERRA derives from
3 For the first time on review, the appellant asserts the following: (1) his building
access was restored on September 13, 2017; (2) he has been relocated to a new
worksite; and (3) he has been assigned a project at another worksite, requiring him to
travel between two worksites. PFR File, Tab 1 at 13 -14. It is apparent that these
alleged incidents occurred shortly before or after the initial decision was issued on
September 14, 2017. ID at 1. On remand, the administrative judge should consider
these additional allegations as a part of the appellant’s USERRA hostile work
environment claim.
7
38 U.S.C. § 4324 (c)(2), which authorizes the Board to enter an order requiring an
agency to comply with the provisions of USERRA and to compensate an
appellant for any loss of wages or benefits suffered by reason of such lack of
compliance. John son v. U.S. Postal Service , 121 M.S.P.R. 101 , ¶ 11 (2014).
¶13 Therefore, in some cases, the Board is unable to provide any effe ctive
remedy for past violations. See, e.g. , id. (dismissing a USERRA allegation for
failure to state a claim upon which relief can be granted because the Board could
not remedy the since -retired appellant’s denial of a lateral reassignment ); Hudson
v. De partment of Homeland Security , 104 M.S.P.R. 223 , ¶ 8 (2006) (finding that
the Board could provide no relief for an alleged USERRA vio lation concerning
military leave because the appellant had no t alleged that he lost any wages or
other compensation and it would have no effect to order the agency to comply
with USERRA since he had left the agency). Here, at a minimum, there appears
to be an allegation of an ongoing hostile work environment. IAF, Tabs 4, 6; PFR
File, Tab 1 at 13 -14. If the appellant proved such an ongoing hostile work
environment, the Board could order the agency to cease its harassment based on
his prior military servi ce in comp liance with 38 U.S.C § 4311(a). See 38 U.S.C.
§ 4324 (c)(2) . Accordingly, we find that the appellant has stated a claim upon
which relief can be granted.
The Board lacks jurisdiction in this USERRA appeal to consider the appellant’s
allegations of prohibited personnel practices.
¶14 The appellant also asserts that the agency committed prohibited personnel
practices in reprisal for his disclosures about waste and incompetence in the
engineeri ng department. PFR File, Tab 1 at 3. The Board lacks jurisdiction to
consider such allegations in a USERRA case. See Schoch v. Department of the
Army , 91 M.S.P.R. 134 , ¶ 13 (2001). Moreover, the appellant has not submitted
evidence that he exhausted his rights before the Office of Special Counsel by
filing a prohibited personnel practice complaint of reprisal for making a protected
8
disclosure or engaging in protected activity. Therefore, the Board lacks
jurisdiction over his claim as an individual right of action appeal. Id.
ORDER
¶15 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudic ation in accordance with this Remand Order. The
administrative judge shall provide the appellant with a hearing on his USERRA
claim and issue a new initial decision on the merits of that claim.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHIN_HONG_HENRY_NY_4324_17_0202_I_1_REMAND_ORDER_1994972.pdf | 2023-01-20 | null | NY-4324 | NP |
3,764 | https://www.mspb.gov/decisions/nonprecedential/JENSON_TRACY_A_SF_3443_17_0273_I_1_FINAL_ORDER_1995038.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TRACY A. JENSON,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
SF-3443 -17-0273 -I-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracy A. Jenson , Hayden , Idaho, pro se.
Gayle E. Townsend , 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 his individual right of action (IRA) appeal for lack of jurisdiction
because he failed to exhaust his administrative remedies with the Office of
Special Counsel (OSC) be fore filing his IRA appeal with the Board . On petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
for review, the appellant states that he “agree[s] with [the administrative judge’s]
final ruling,” acknowledges the need to “file the necessary action with OSC,” and
does not challenge the administrative judge’s jurisdictional findi ngs. Petition for
Review File, Tab 1 at 2, 5. Instead, the appellant argues the merits of his claims,
which have no bearing on the jurisdictional issue identified by the administrative
judge. Id. at 2-5. Gener ally, 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 applic ation 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 t he outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
2 Neither the administrative judge’s acknowledgement order nor the agency’s motion to
dismiss a ppris ed the appellant of his burden of establishing Board jurisdiction over his
IRA appeal. Initial App eal File (IAF), Tab s 2, 6. Also, w hile the administrative judge
apparently discussed the jurisdictional exhaustion issue with the appellant during the
status conference, she did not provide him written notice as required by Burgess v.
Merit Systems Protec tion Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (holding that an
appellant must receive explicit information on wh at is required to establish an
appealable jurisdictional issue). IAF, Tab 9, Initial Decision (ID) at 6 n.5. To the
extent the administrative judge did not properly apprise the appellant of his
jurisdictional burden at the outset of the appeal, however, the initial decision cured any
potential defect in this regard . ID at 5-6; see Caracciolo v. Department of the Treasury ,
105 M.S.P. R. 663 , ¶ 11 (2007) (stating that an administrative judge’s failure to provide
an appellant with proper Burgess notice in an acknowledgment order or show cause
order can be cured if the initial decision puts the appellant on notice of what he must do
to es tablish jurisdiction for the first time on review ), overruled on other grounds by
Brookins v. Department of the Interior , 2023 MSPB 3; Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984) (stating that an adjudicatory error that is not
3
Therefo re, 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 o f this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 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 de cide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
prejudicial to a par ty’s substantive rights provides no basis for reversal of an 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, th e
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 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appeala ble to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection B oard , 582 U.S. ____ , 137 S. Ct. 19 75 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must 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 sec urity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a reque st for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deli very or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protec tion
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit 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.
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/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JENSON_TRACY_A_SF_3443_17_0273_I_1_FINAL_ORDER_1995038.pdf | 2023-01-20 | null | SF-3443 | NP |
3,765 | https://www.mspb.gov/decisions/nonprecedential/KASMER_DAVID_SF_0752_16_0623_I_1_FINAL_ORDER_1995090.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID KASMER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -16-0623 -I-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua Klinger , Esquire, and Thomas F. Muther, Jr. , Esquire , Denver,
Colorado, for the appellant.
Melinda Varszegi , Esquire, Sandy, Utah, 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 . On petition for review, the appellant argues the agency
violated his due process rights . Generally, we grant petition s such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not esta blished any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
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 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
appropriate for your situation and the rights described be low do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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 dismis sal of your case by your chosen forum.
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 op tion is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
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
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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 de scribed in section 2302(b)(8), 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).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review A ct 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
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 | KASMER_DAVID_SF_0752_16_0623_I_1_FINAL_ORDER_1995090.pdf | 2023-01-20 | null | SF-0752 | NP |
3,766 | https://www.mspb.gov/decisions/nonprecedential/LOVE_ANGELA_AT_1221_19_0021_W_1_FINAL_ORDER_1995138.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELA LOVE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -19-0021 -W-1
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
Michael Rhodes , Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris , Vice Ch airman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
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
action (IRA) appeal concerning her probationary termination . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or t he 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 resulti ng 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 fo r review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 The agency appointed the appellan t to the position of Diagnostic Radiologic
Technician in June 2016. Initial Appeal File (IAF), Tab 1 at 7, Tab 19 at 11,
Tab 25 at 137. At her first performance review, the appellant’s chain of
command rated her as “outstanding.” IAF, Tab 25 at 140 -42. During the months
that followed , the agency relieved her chain of command and installed an Acting
Chief of the Radiology Department. IAF, Tab 6 at 18-19, 22-23. In April 2017,
the appellant received a cash award for her performance, but the Acting Chief of
Radiology terminated her just days later, before the end of the appellant’s
probationary period. Id. at 51 -54. The decision cited “unacceptable conduct and
performance,” without providing any further explanation. Id. The appellant filed
a complaint with the Office of Special Counsel (OSC), alleging that her
probationary termination was the product of retaliation. Id. at 22 -28; IAF , Tab 17
at 7. OSC ended its investigation in August 2018, and this timely IRA appeal
followed. IAF, Tab 1 at 16.
3
¶3 The administrative judge developed the record and held the requested
hearing before granting the appellant’s request for corrective action. IAF,
Tab 37, Hearing Recording (HR), Tab 42, Initial Decision (ID). He found that the
appellant exhausted her remedies with OSC and proved that she made one
protected disclosure, multiple times, by disclosing that the agency was failing to
pay her subordinates for their on -call time. ID at 12 -13. He also found that the
appellant proved that these disclosures were a cont ributing factor in her
probationary termination. ID at 13 -15. Finally, the administrative judge found
that the agency failed to prove that it would have terminated the appellant in the
absence of her protected disclosures. ID at 15 -21.
¶4 The agency has filed a petition for review. Petition for Review (PFR) File,
Tabs 1 -2. On review, the agency does not dispute that the appellant exhausted
her administrative remedies with OSC and made protected disclosures. The
agency does, however, dispute the adminis trative judge’s findings for the
contributing factor criterion. PFR File, Tab 1 at 11 -12. In the alternative, the
agency argues that the administrative judge erred in finding that the agency failed
to rebut the appellant’s prima facie case of reprisal. Id. at 7-11. The appellant
has filed a response, to which the agency replied.2 PFR File, Tabs 4 -5.
¶5 Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
2 In part, the appellant asks that we dismiss the agency’s petition for review due to a
delay in the agency providing interim relief. PFR File, Tab 4 at 4 -5. The agency
argues otherwise, asserting that the delay was attributable to the appellant and her
availability. PFR File, Tab 5 at 4 -5. Because our final decision on the merits of this
appeal render this dispute moot, we need not consider the matter further. Elder v.
Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016).
4
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 her IRA appeal,
she is entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence.3 Id.
¶6 If the appellant proves that her protected disclosure or ac tivity was a
contributing factor in a personnel action taken against her, the agency is given an
opportunity to prove, by clear and convincing evidence,4 that it would have taken
the same personnel action in the absence of the protected disclosure or activ ity.
Id. In determining whether the agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of t he 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 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
evidenc e, 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). In addition, the Board is
mindful that “[e]vidence only clearly and convincingly supports a conclusion
when it does so in the aggregate considering all the pertinent evidence in the
record, and despite the evidence that fairly detracts from that conclusion.”
Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2 012).
3 Preponderant evidence is t he degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to f ind that a contested
fact is more likely to be true than untrue . 5 C.F.R. § 1201.4 (q).
4 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 allega tions sought to be established; i t is
a higher standard than preponderant evidence . 5 C.F.R. § 1209.4 (e).
5
The appellant presented a prima facie case of reprisal.
¶7 Once again, the administrative judge determined that the appellant made
disclosures protected by 5 U.S.C. § 2302 (b)(8).5 IAF, Tab 9 at 2, Tab 16. He
found that the appellant made the same disclosure —that the agency was failing to
pay her subordinates for their on -call work —to officials within her chain of
command and while testifying before an Administrative Investigation Board
(AIB). ID at 12 -13. As previously stated, the agency does not dispute that the
appellant made these disclosures, or that they were protected. PFR File, Tab 1
at 6. The administrative judge also determined that the appellant proved the
contributing factor crite rion. ID at 13 -15. It is this element of the appellant’s
burden that the agency does dispute.
¶8 The administrative judge’s findings concerning the contributing factor
criterion were two -fold. First, for the protected disclosure made outside the
context of the AIB, he determined that the appellant proved the contributing
factor criterion through the knowledge/timing test. See Mastrullo v. Department
of Labor , 123 M.S.P.R. 110 , ¶¶ 18, 21 (2015) (an employee may demonstrate that
5 Prior to December 12, 2017, the whi stleblower protection statutory scheme provided
that “cooperating with or disclosing information to the Inspector General of an agency,
or the Special Counsel, in accordance with applicable provisions of law,” is protected.
5 U.S.C. § 2302 (b)(9)(C). However, section 1097(c)(1) of the National Defense
Authorization Act of 2018 (NDAA), Pub. L. No. 115 -91, 131 Stat. 1283, 1618 (2017)
amended section 2302(b)(9)(C) to provide that, in addition to the I nspector General of
an agency or the Special Counsel, a disclosure to “any other component responsible for
internal investigation or review” is also protected.
In a decision issued after the initial decision for the instant appeal, the Board concluded
for the first time that, because the NDAA’s amendment to section 2302(b)(9)(C) would
increase an agency’s liability for past conduct, the post -NDAA expansion of
section 2302(b)(9)(C)’s coverage could not be given retroactive effect. Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 29-33 (relying on Landgraf v. USI Film
Products , 511 U.S. 244 , 280 (1994) ). Although the administrative judge did not have
the benefit of our decision in Edwards , he correctly reached the same co nclusion and,
therefore, found that the appellant’s mere cooperation with the Administrative
Investigation Board , before Congress amended section 2302(b)(9)(C), was not
protected. IAF, Tab 16.
6
a protected 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 1 to 2
years of the appellant’s disclosures). In particular, the administrative judge
recognized that the Acting Chief of Radiology acknowledged knowing about the
appellant’s disclosure, outside the context of the AIB, before she terminated the
appellant . ID at 13 -14; HR ( testimony of the Acting Chief of Radiology).
¶9 Second, for the same protected disclosure made during the AIB, the
administrative judge determined that the contributing factor criterion was
satisfied through means other than the knowledge/timing test. ID a t 14-15; see
Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 15 (2012) (if an appellant
is unable to prove contributing fact or through the knowledge/timing test, the
Board will consider whether the element is satisfied though other evidence, such
as evidence pertaining to the strength or weakness of the agency’s reasons for
taking the personnel action, whether the whistleblowin g was personally directed
at the proposing or deciding officials, and whether these individuals had a desire
or motive to retaliate against the appellant). In particular, he found that there was
no evidence to satisfy the knowledge prong of the knowledge /timing test for that
disclosure, but the contributing factor was nevertheless satisfied based on other
circumstantial evidence, such as the fact s that the agency terminated the appellant
just 2 weeks after the appellant’s disclosure to the AIB deposition a nd that the
agency’s evidence to support th at termination was so poor. ID at 14 -15.
¶10 On review, the agency argues that the appellant failed to prove the
contributing factor criterion. PFR File, Tab 1 at 11 -12. According to the agency,
the agency’s failur e to pay the appellant’s subordinates for their on -call time was
an issue that predated the tenure of the officials involved in her termination —the
Acting Chief of Radiology and a Human Resources official that assisted with the
matter. Id. The agency, th erefore, argues that these officials had no motive to
7
retaliate for the appellant’s disclosures, so the circumstances did not support the
administrative judge’s finding regarding the contributing factor criterion. Id.
¶11 As an initial matter, we note that the agency’s argument implicates only the
appellant’s protected disclosure during the AIB; it has no bearing on the appellant
proving the contributing factor through the knowledge/timing test for the same
disclosure made outside the AIB. In addition, the agency’s argument is little
more than a conclusory assertion, without evidence of record identified as
support. PFR File, Tab 1 at 11 -12. It is, therefore, unavailing. See Weaver v.
Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (before the Board will
undertake a complete review of the record, the petitioning party must explain why
the challenged factual determination is incorrect, and i dentify the specific
evidence in the record which demonstrates the error); 5 C.F.R. § 1201.114 (b) (a
petition for review must state a party’s objections to the initial decision, includin g
all of the party’s legal and factual arguments, and must be supported by specific
references to the record and any applicable laws or regulations).
¶12 Separately, we note that the agency has generally identified the contributing
factor criterion correctly. PFR File, Tab 1 at 11. Yet, without any substantive
argument or explanation, the agency also states that the appellant had the burden
of proving that the agency took her probationary termination “ because of ” her
protected disclosures. Id. (emphasis in original); see generally Savage v.
Department of the Army , 122 M.S.P.R. 612 , ¶ 39 (2015) (recognizing that
“because of” implicates “but -for” causation) , overruled in part by Pridgen v.
Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23-24. To the extent that the
agency is suggesting otherwise, we note that the appellant’s burden was to prove
contributing factor, not “but -for” or any other level of causation. See Aquino v.
Department of Homeland Security , 121 M.S.P.R. 35 , ¶ 23 (2014) (explaining that
contributing factor is a lesser causation standard than even the motivating factor
standard).
8
¶13 In sum, the agency has not pre sented any argument regarding the
appellant’s proof that she made protected disclosures. Although the agency does
present arguments regarding the appellant’s proof of the contributing factor
criterion, those arguments provide no basis for us to disturb th e administrative
judge’s findings about the same.
The agency failed to rebut the appellant’s prima facie case of reprisal.
¶14 As stated above, if an appellant proves that she made a protected disclosure
and that protected disclosure was a contributing facto r in a personnel action, the
burden shifts to the agency. Supra ¶ 6. The agency must prove, by the
heightened clear and convincing standard, that it would have taken the same
personnel action in the absence of the appellant’s protected disclosure. Id.
¶15 For the first Carr factor, the strength of the agency’s evidence in support of
the appellant’s probationary termination, the administrative judge found the
agency’s evidence weak . ID at 16 -19. The appellant’s termination notice merely
cited “unacceptable conduct and performance.” IAF, Tab 6 at 53 -54. With this
appeal, the agency elaborated by describing three reasons for the appellant’s
termination: absence without leave, failure to follow leave instructions, and
disrespectful comments. IAF, Tab 24 at 78. Yet the administrative judge found
that the agency provided no evidence to support the first two reasons, and little
more than one witness’s testimony concerning the third reason and related
allegations —testimony that was not credible. ID at 17 -19.
¶16 For the second Carr factor, the agency’s motive to retaliate, the
administrative judge indicated that the record was less clear. ID at 19 -20.
Among other things, he noted that the Acting Chief of Radiology sought the
appellant’s termination shortly after the appellant’s disclosures to the AIB. ID
at 19. Additionally, he found that the Acting Chief of Radiology’s testimony
about the reasons for the termination —reasons such as the appellant’s failure to
properly greet her arrival on one occasion —made littl e sense. Id. Therefore, the
administrative judge determined that these and other considerations suggested
9
that the Acting Chief of Radiology had some ulterior motive for the appellant’s
termination, such as her status as a whistleblower. ID at 19 -20.
¶17 For the third and final Carr factor, evidence that the agency takes similar
actions against employees who are not whistleblower s but who are similarly
situated, the administrative judge found that the agency failed to provide any
comparators. ID at 21. Con sidering each of the Carr factors, together, the
administrative judge concluded that the agency failed to meet its burden. Id. It
failed to prove, by clear and convincing evidence, that it would have terminated
the appellant in the absence of her protect ed disclosures. Id.
¶18 On review, the agency argues that the administrative judge erred by
pointing to the absence of documentary evidence in reaching his conclusions
about the first Carr factor, because probationary terminations do not require the
documentation and rigor of removals involving tenured employees. PFR File,
Tab 1 at 7 -9. This argument is unavailing. Whether the appellant was a
probationary or tenured employee, it remained the agency’s burden to prove,
under the heightened clear and convincing standard, that it would have taken the
same personnel action in the absence of the appellant’s protected disclosures. As
the administrative judge correctly acknowledged, the agency a lmost exclusively
relied on the testimony of the Acting Chief of Radiology to meet that burden. ID
at 5-8, 16 -19. Although this may be attributable to a mistaken belief that it would
not have to defend the probationary termination, the agency’s failure t o document
the appellant’s alleged shortcomings was at its own peril.
¶19 Regarding that testimony from the Acting Chief of Radiology, the agency
suggests that it sufficed to meet the agency’s burden. PFR File, Tab 1 at 8 -10.
However, the administrative judg e did not find her testimony credible for various
reasons, including witness demeanor and the absence of corroborating evidence.
ID at 18 -19; see Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir.
2002) (explaining that the Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
10
observing the demeanor of witnesses test ifying at a hearing, and may overturn
such determinations only when it has “sufficiently sound” reasons for doing so).
The agency indicates that there was corroborating evidence in the form of
testimony from the Human Resources official that advised the A cting Chief of
Radiology. PFR File, Tab 8 -10. Yet the administrative judge found otherwise .
ID at 7 -8. The administrative judge noted that this Human Resources official had
no firsthand knowledge of the appellant’s alleged shortcomings and even
contradi cted the Acting Chief of Radiology on key points, including whether he
recommended that the Acting Chief of Radiology terminate the appellant or
document her shortcomings beforehand. ID at 7 -8, 16 -18. Although the agency
has directed us to the testimony of these two officials, generally, it has not
presented any reason for us to disturb the administrative judge’s findings
regarding credibility or, more broadly, the strength of the agency’s evidence in
support of its personnel action.
¶20 The agency separately argues that the appellant failed to present evidence
that would counter the testimony of the Acting Chief of Radiology. PFR File,
Tab 1 at 8. Once more , the administrative judge did not find the Acting Chief of
Radiology credible and it was the agency w ith the burden of proving that it would
have terminated the appellant in the absence of her protected disclosures, not the
appellant’s burden to prove otherwise. Moreover, as described in the initial
decision, the appellant did present some evidence to co unter the Acting Chief of
Radiology’s testimony about her alleged shortcomings . ID at 3 -4. A mong other
things, the appellant presented documentary evidence describing her performance
as exceptional, along with similar testimony from multiple third -party witnesses.
E.g., IAF, Tab 6, at 51, Tab 25 at 140-42. .
¶21 Turning to the second Carr factor, the agency simply asserts that the Acting
Chief of Radiology had no motivation to terminate the appellant, because the
appellant’s disclosures implicated improprieties that occurred prior to her tenure.
PFR File, Tab 1 at 10 -11. Yet again , this is little more than a conclusory
11
assertion. See supra ¶ 11 . The agency has not identified evidence to establish
any specific error in the initial decision regarding the second Carr factor . Nor
has the agency shown that the administrative judge’s conclus ion about the Carr
factors, weighed together, was erroneous.
¶22 Ultimately , the agency’s limited arguments on review are unavailing. The
agency’s petition contains no basis for us to disturb the administrative judge’s
determination that the agency failed to rebut the appellant’s prima facie case of
whistleblower reprisal.
ORDER
¶23 We ORDER the agency to rescind its probationary termination of the
appellant and to restore her, effective April 21, 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.
¶24 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.
¶25 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carri ed 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. § 1201.1 81(b).
¶26 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
12
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).
¶27 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations ma y be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be en titled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
13
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIE S
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
6 Since the issuance of the initial decision in this matter, t he Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
Although 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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
16
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
17
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
18
Contact information for the courts of appeals can be 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%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 noti fied to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside ea rnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is l ater reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt fr om the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and s ubmit AD -343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explan ation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration P eriod, 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 q uestions or require clarification on the above, please contact NFC’s Payroll/Personnel
Operations at 504 -255-4630. | LOVE_ANGELA_AT_1221_19_0021_W_1_FINAL_ORDER_1995138.pdf | 2023-01-20 | null | AT-1221 | NP |
3,767 | https://www.mspb.gov/decisions/nonprecedential/BENNETT_STEVEN_M_DE_0752_12_0183_I_3_FINAL_ORDER_1995149.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN M. BENNETT,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency .
DOCKET NUMBER S
DE-0752 -12-0183 -I-3
DE-1221 -13-0089 -W-2
DATE: January 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven M. Bennett , Arvada, Colorado, pro se .
Amy Duin , Esquire, Lakewood, Colorado, 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 his removal and denied his request for corrective action in his individual
right of action (IRA) appeal. Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 e rroneous 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 procedure s 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 basi s 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 ’s U.S. Geological Survey, National Water Quality Laboratory ,
removed the appellant from his Physical Science Technician position , effective
February 10, 2012 , based on a charge of “Failure to Comply with Direct
Orders/Instructions” supported by17 specifications spanning a period of over
4 weeks . Bennett v. Department of the Interior , MSPB Docket No. DE-0752 -12-
0183 -I-1, Initial Appeal File (0183 IAF), Tab 1 at 10-20. The agency asserted
that, instead of performing the tasks given to him by his immediate supervisor,
the appellant did no work for 23 days except for a few m inor tasks that could be
performed from his cubicle. Id. at 11-12. On appeal, the appellant asserted that
the agency ’s acts of harassment interfered with h is performance of his duties , and
that the action was based on harmful error , a due process violation , and reprisal
for protected activities, including whistleblowing , such as filing a complaint with
the Occupational Safety and Health Administration and filing an ethics complaint .
3
Id. at 5, 7; Bennett v. Department of the Interior , MSPB Docket No. DE-0752 -12-
0183 -I-2, Appeal File (I-2 AF), Tab 36.
¶3 While his removal appeal was pending, the appellant filed a November 14,
2012 IRA appeal challenging his 5-day suspension in 2011 for failure to comply
with a direct order and inappropriate conduct , and his proposed 14 -day
suspension in 2011 for failure to comply with a direct order . Bennett v.
Department of the Interior , DE -1221 -13-0089 -W-1, Initial Appeal File
(0089 IAF), Tabs 1, 36; 0183 IAF, Tab 10 at 113-16, 153-54, 182 -85. He
asserted that these actions were based on the same disclosures he raised in his
removal appeal, which involv ed time and attendance abuses, fume hoods that
did not work properly, and improper sample analyses . 0089 I AF, Tab 36 at 1-2.
The administrative judge joined the removal and IRA appeals. I -2 AF, Tab 6;
0089 IAF, Tab 4.
¶4 After a 10-day hearing involving 32 witnesses , the administrative judge
issued an initial decision that affirmed the removal and denied corrective action
in the IRA appeal . Bennett v. Department of the Interior , DE -1221 -12-0183-I-3,
Appeal File , Tab 12, Initial Decision (ID) at 2, 5, 31; I-2 AF, Tabs 36, 39 , 47.
The administ rative judge found that the agency proved by preponderant evidence
its charge, nexus , and the reasonableness of the removal penalty. ID at 7, 20-24,
27-30. She also found that, although the appellant made protected disclosures
that were a contributing fa ctor in his removal , the agency proved by clear and
convincing evidence that it would have removed him absen t his disclosures. ID
at 7-9, 27. She further found that he did not prove his due process violation or
harmful error claims . ID at 24-27. Regarding the IRA appeal, the administrative
judge again found that , although the appellant made protected disclosures that
were a contributing factor in the personnel actions , the agency proved by clear
and convincing evidence that it would have impose d the 5 -day suspension and
proposed the 14 -day suspension absen t his disclosures . ID at 7-19.
4
¶5 The appellant filed a petition for review. Bennett v. Department of the
Interior , DE -1221 -12-0183-I-3, Petition for Review (PFR) File, Tab 1. The
agency file d a response to the petition for review. PFR File, Tab 3.
ANALYSIS2
¶6 The appellant asserts on review that the administ rative judge took 2 years
and 9 months to issue an initial decision after the close of the record, and
therefore must have forgotten muc h of the evidence presented at the hearing .
PFR File, Tab 1 at 4. The appellant further contends that the administrative judge
improperly denied his motion to compel discovery and many of his requested
witnesses . Id. at 4-7. In addition, he alleges that the administrative judge was
biased against him by , among other things, preventing him from asking questions
of witnesses similar to those asked by the agency’s representative , interfering
with his questioning of witnesses , and failing to grant his mo tion for extending
the close of record date , even though the administrative judge had granted a filing
extension to the agency . Id. at 7-9.
¶7 An administrative judge’s delay in issuing a ruling, such as an initial
decision, does not, without more, constit ute reversible error. See Keefer v.
Department of Agriculture , 92 M.S.P.R. 476, ¶ 6 (2002); Fouquet v. Department
of Agriculture , 82 M.S.P.R. 548, ¶¶ 7-9 (1999) ( finding that the appellant was not
prejudiced by administrative judge ’s 1-year delay in issuing an initial decision
when there was no evidence that the administrative judge could not recall the
details of testimony so as to make accurate credibility determinations) ;
Paclibare v. Veterans Administration , 22 M.S.P.R. 320, 323 (1984) (finding no
prejudice to the appellant’s substantive rights from the issuance of an initial
decision 8 months after the hearing) , aff’d , 785 F.2d 322 (Fed. Cir. 1985) (Table) .
Here, the administrative judge referenced the testimony of multiple witnesses and
2 We have reviewed the relevant legislation enacted since the filing of this appeal and
find that it does not impact the outcome.
5
made specific findings as to their demeanor and credibility. ID at 9-11, 14,
16-19, 23, 29. The testimony is this case consists of several volumes of h earing
transcripts , which were available to and referenced in detail by the administrative
judge . The appellant’s mere speculation that the administrative judge must have
forgotten some unspecified testimony does not establish a basis for revers ing the
initial decision .
¶8 Although the appellant challenges the administrative judge’s denial of his
motion to compel, he has shown no error in he r determination that he exceeded
the number of interrogatories permitted under the Board’s regulations . I-2 AF,
Tab 20 at 7-15, Tab 23; see 5 C.F.R. § 1201.73 (e)(1) . Moreover, the appellant is
precluded from raising this issue on review because he did not preserve an
objection to the ruling below. See Miller v. U.S. Postal Service , 117 M.S.P.R.
557, ¶ 7 (2012) ; Boechler v. Department of the Interior , 109 M.S.P.R. 542, ¶ 17
(2008) , aff’d, 328 F. App’x 660 (Fed. Cir. 2009) (Table) . We further note that the
appellant’s motion to compel did not include a copy of the agency’s response to
his discovery requests or a statement that no response had been received, along
with an affidavit or sworn statement . I-2 AF, Tab 20; see 5 C.F.R. § 1201.73 (c).
Thus, he has shown no abuse of discretion by the administrative judge.
Moreover, the appellant did not object below to the administrative judge’s ruling
on his witness requests . I-2 AF, Tab 38; Hearin g Transcript (Apr. 11, 2013)
at 62-63. Thus, he i s precluded from doing so on review. In any event, other
than generally alleging that these witnesses would have substantiated his claims
of harassment and retaliation, PFR File, Tab 1 at 6-7, the appellant has not shown
that the y would have provided rele vant, ma terial, and nonrepetitious testimony ,
see Vaughn v. Department of the Treasur y, 119 M.S.P.R. 605, ¶ 13 (2013 );
5 C.F.R. § 1201.41 (b)(10) . As set forth above, the administrative judge approved
32 witnesses in this case. I-2 AF, Tabs 36, 39, 47 ; see Hearing Transcripts .
Thus, we find that the app ellant has shown no abuse of discretion by the
adminis trative judge in her rulings on witnesses.
6
¶9 To establish bias by an administrative judge, an appellant must overcome
the presumption of honesty and integrity that accompanies administrative
adjudicator s. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 29
(2015). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the comments or action evidence a
deep -seated favoritism or antagonism that would make fair judgment impossible .
Id. Here, t he appellant does not identify where in the hearing transcript the
admin istrative judge allegedly interrupted or interfered with his questioning of
witnesses. Thus, he has not substantiated this allegation. See 5 C.F.R.
§ 1201. 114(b) (stating that a petiti on for review must be supported by specific
references to the record ). In any event, the appellant has not otherwise shown
that the administrative judge evidenced a deep -seated favoritism or antagonism
that would make fair judgment impossible . In fact, t he administrative judge’s
rulings , which permitt ed an extensive number of witnesses , a length y hearing , and
several extensions and dismissals without prejudice to refiling , suggest that she
conducted a fair and impartial proceeding for this pro se appellant. Thus, we find
no showing of bias by the administrative judge .
¶10 The appellant also asserts that the administrative judge misstated some of
the evidence, including the filing date of his IRA appeal, the individual to whom
he raised his time and attendance abuse concerns, the date the record closed,
certain facts regarding a counseling memo that predated the 5 -day suspension ,
and whether he nudged a coworker’s shoulder or, alternatively, poked him in t he
ribs, which facts relate to one of the specifications underlying the 5 -day
suspension . PFR File, Tab 1 at 9-11, 21. The appellant contends that, although
the administrative judge held that the only personnel actions at issue in the case
were the 5 -day suspension, the proposed 14 -day suspension, and the removal, she
also mentioned the counseling memo in the initial decision . Id. at 12.
¶11 To the extent that the administrative judge made any of the errors set forth
above by the appellant , we find that he has not shown that any such error
7
prejudiced his substantive rights or would change the outcome of th is appeal . See
Sloan v. U.S. Postal Service , 77 M.S.P.R. 58, 80 n.9 (1997) . Moreover, the
administrative judge addressed the counseling memo solely in the context of
providing background information in her discussion of the 5 -day suspension, ID
at 10-11, and in finding, in connection with her considering the reasonableness of
the penalty, that the appellant was on clear notice of his obligation to follow his
supervisor’s instructions, ID at 29; see Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 (1981 ). The administrative judge did not adjudicate the
counseling memo as a separate personnel action, nor did she consider it in her
finding that the agency’s evidence in support of the 5 -day suspension was strong.
ID at 12-17, 19. Thus, we find that the appellant has shown no error in the
administrative judge ’s references to the counseling memo .
¶12 The appellant further recounts many other acts of alleged harassment and
retaliation and asserts that the administrative judge ignored this evidence . PFR
File, Tab 1 at 12-17. An administrative ju dge’s failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
decision . See Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 14
(2015) , aff’d , 652 F. App’x 971 (Fed. Cir. 2016) (Table) . This is especially true
in this case , given the extensive written record and 10 -day hearing. In any event,
we find that the administrative judge considered in the aggregate all of the
pertinent evidence in the record in finding that the agency proved by clear and
convincing evidence that it would have taken the same personnel actions absent
the appellant’s disc losures , including evidence that fairly detracted from that
conclusion. ID at 10-24, 27 ; see Whitmore v. Department of Labor , 680 F.3d
1353 , 1368 (Fed. Cir. 2012 ). For example , the administrative judge found that
the agency did not prove one of the specifications underlying a charge in support
of the 5 -day suspension , noted that the agency withdrew one of the specifications
support ing the remo val, and held that the appellant’s hearing testimony regarding
the hostility he experienced from his coworkers , his “thinking process,” and his
8
reason for choosing not to work, was credible and consistent with his written
statements . ID at 17, 22-24.
¶13 The appellant also asserts that his immediate and second -level supervisor s,
who proposed and issued the 5 -day suspension, w ere “involved in [s]cientific
misconduct ” relating to, among other things, changing data file results and hold
times , and reporting sample test results when there was a known mix up in the
sample s. PFR File, Tab 1 at 17-18. The appellant contends that the scientific
misconduct directly reflected on management and the agency as a whole. Id.
at 19-20. The administrativ e judge found that the data integrity issues raised by
the appellant did not directly involve his immediate supervisor, who was merely
aware that a review had determined that some employees “had an insufficient
understanding of how to document properly for record -keeping.” ID at 18. The
administrative judge found, based in part on the demeanor of the appellant’s
immediate supervisor, that the appellant’s disclosures provided little motive for
her to retaliate; instead, her frustrations with the appellant were caused by his
adamant refusal to acknowledge and respect her authority over him as his
supervisor. ID at 17-18. Regarding the deciding official who issued the 5 -day
suspension, the administrative judge similarly found that the data integrity
complai nts were not directed at him , he was not adversely affected by them, he
testified that the disclosures played no role in his decision to suspend the
appellant, and his testimony was credible based on, among other things, his
demeanor . ID at 19.
¶14 The Board defer s to an administrative judge’ s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing , and overturn s such determinations only when it
has sufficiently sound re asons for doing so . See Haebe v. Department of Justice ,
9
288 F.3d 1288 , 1301 (Fed. Cir. 2002) .3 It appears that one of the appellant’s
disclosu res involved his reporting to an agency ethics counselor that his
immediate supervisor had changed the previously established manner of counting
the number of days during which a sample could be held for testing. I -2 AF,
Tab 25 at 7. Even assuming that t he immediate supervisor’s actions constituted
some level of involvement in the alleged scientific misconduct, and that any
scientific misconduct reflected on management and the agency as a whole , the
appellant has not demonstrated sufficiently sound reasons for overturning the
administrative judge’s credibility determination s. See Robinson v. Department of
Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019) ( analyzing whether there
was a professional motive to retaliate when the whistleblowing disclosures
reflected negatively on the agency) ; see, e.g., PFR File, Tab 1 at 17, 82, 90.
Accordingly, we find that he has shown no error in the administrative judge’s
findings that the agency had strong evidence in support of the 5 -day suspension,
any motive to retaliate was slight or nonexistent , and the agency otherwise proved
by clear and convincing evidence that it would have suspended him for 5 days
absen t his protected disclosures. ID at 10-19.
¶15 Finally, t he appellant includes with his petition for review over 700 pages
of documents that appear to consist of rulings made below by the administrative
judge, a court decision, other documents that appear to have been a part of the
record below , and hearing transcripts. PFR File, Tab 1 at 26-737. Evidence that
is already a part of the record is not new. Brough v. Department of Commerce ,
119 M.S.P.R. 118, ¶ 4 (2013). Because t he appellant has not alleged or shown
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 , 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.
10
that th ese documents were previously unavailable before the record closed below
and are otherwise material, we need not consider them . See Cunningham v.
Department of the Army , 119 M.S.P.R. 147, ¶ 7 (2013) ; 5 C.F.R. § 1201.115 (d);
5 C.F.R. § 1201.114 (b) (indicating that a petition for review should not include
documen ts that were part of the record below) .
¶16 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in f inal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
12
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Was hington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5 SW12G
Washington, D.C. 20507
13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no ch allenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor wa rrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BENNETT_STEVEN_M_DE_0752_12_0183_I_3_FINAL_ORDER_1995149.pdf | 2023-01-20 | null | S | NP |
3,768 | https://www.mspb.gov/decisions/nonprecedential/AGEE_LONG_JOMICHELE_SF_0752_17_0518_I_1_REMAND_ORDER_1995188.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOMICHELE AGEE -LONG,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.
DOCKET NUMBER
SF-0752 -17-0518 -I-1
DATE: January 20, 2023
THIS ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Deborah Finch , 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
dismissed her alleged involuntary retirement 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 de cision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a Contract Specialist for the agency . Initial Appeal File
(IAF), Tab 10 at 46. She alleges that , in early 2015, she reported that he r
second -level supervisor was intoxicated on the job and would be absent from
work for “hours at a time” or an entire day. IAF, Tab 1 at 7, Tab 6 at 8 . On
November 9, 2015, the appellant’s first-level supervisor issued her a Letter of
Warning for inappropriate behavior during a routine status meeting. IAF, Tab 10
at 44-45. According to the appellant, the same supervisor placed her on a
3-month sick leave abuse plan during this timeframe , requiring that she provide a
doctor’s note for each day that she requested sick leave. IAF, Tab 3 at 6 , 9, Tab 7
at 16. In May 2016, the appellant’ s first - and second -level supervisors issued her
an interim performance rating of “unacceptable” and revoked her telework
privileges. IAF, Tab 8 at 50 ; Tab 10 at 43. The agency also denied her a
within -grade increase (WIGI) at or around the same time. IAF, Tab 8 at 50.
¶3 The appellant also alleges that she made reports to Federal Protective
Services (FPS) in the summer of 2016. IAF, Tab 6 at 8, Tab 7 at 14, 29, Tab 8
at 5. She alleges that she disclosed to FPS that supervisors and managers were
engaging in a “chronic drinking environment . . . during duty hours.” IAF, Tab 8
at 5. She also claims that she disclosed to FPS that her second -level supervisor
had an outburst at work , during which, “[f]or about 5 minutes, over and over
again, he jumped and screamed, ‘I hate this fucking place ’” and “ ‘I hate this
fucking job.’”2 IAF, Tab 6 at 8.
2 The appellant alleges that she spoke with the agency’s Office of Inspector General
regarding her claim that she was subjected to a hostile work environment. IAF, Tab 5
at 10, Tab 8 at 48. However, it is unclear if this conversation took place before or after
her retirement. IAF, Tab 8 at 48. The appellant generally alleges that her second -level
supervisor “yell[ ed]” at her, but provides no example of this alleged yelling, other than
the incident discussed above. IAF, Tab 6 at 14.
3
¶4 In June 2016, the appellant’s first -level s upervisor issued her a written
reprimand for two instances of failure to follow instructions. IAF, Tab 10
at 36-37. A month later , he issued the appellant a Notice of Proposed Suspension
for failure to follow instructions, inappropriate behavior, failure to provide him
with a contract inventory status, failure to send 60 -day notices of the
Government’s intent to exercise contract option s, and failure to issue contract
modifications. Id. at 29-35. The appellant’s division director, who was the
deciding official, sustained the charges and suspended the appellant from
September 6 to 20, 2016. Id. at 20 -28.
¶5 On September 22, 2016, the appellant’s first -level supervisor again issued
the appellant a written reprimand for disruptive behavior . Id. at 14-15. He also
placed her on a 90 -day performance improvement plan (PIP) . Id. at 4-10. The
appellant alleges that during the P IP the agency added new assignments on top of
her existing assignments and denied her trainin g that she needed to complete her
assignments. IAF, Tab 5 at 19. Six days after the agency placed her on a PIP, the
appellant began seeking retirement counseling f rom the agency. IAF, Tab 11
at 8-10.
¶6 On October 26, 2016, the appellant requested reasonab le accommodation s
of a flexible work schedule and a quiet location where s he could “focus on [her]
duties. ”3 IAF, Tab 9 at 63-65. On October 31, 2016, an agency reasonable
accommodation coordinator asked the appellant to provide medical
documentation to substantiate her need for a quiet work location . Id. She
observed that the medical documentation the appellant provided did not reflect
“any required changes in [her] workplace.” Id. at 64. She also indicated that a
flexible w ork schedule would prevent the appellant from performing her essential
job duties. Id. at 65. It appears that the appellant did not provide the requested
3 The appellant alleges that she first requested accommodation while she was serving
her September 2016 suspension and that the agency denied that request due to lack of
medical documentation . IAF, Tab 6 at 13.
4
documentation. IAF, Tab 6 at 13. She asserts that she believed documentation
that she previously provided to the agency was sufficient because her disability
was “ well -document ed and noted as permanent.” Id. According to the appellant,
the agency’s treatment of her caused her medical condition to worsen, and she
began a period of leave on November 3, 2016. Id. at 14. She also alleges that she
learned on November 14, 2016, that her annual performance rating was going to
be unacceptable. Id. at 13. She retired effective November 30, 2016. IAF, Tab 9
at 53 -54. Two days before her retirement, she to ld an agency employee
processing her retirement paperwork that, “I am happy with the decision and very
much looking forward to the next season in my life’s journey.” Id. at 54.
¶7 The appellant filed an equal employment opportunity (EEO) complaint in
which s he alleged that she involuntarily retired as a result of agency
discrimination. IAF, Tab 9 at 15. The agency issued a Final Agency Decision
(FAD) denying the appellant’ s EEO complaint on May 22, 2017. Id. at 16-39.
Although the appellant also raised a whistleblower reprisal claim in her EEO
complaint, the FAD did not include notice of her right to file a claim with the
Office of Special Counsel (OSC) . Id. at 37 -38. The appellant filed this
involuntary ret irement appeal on June 21, 2017. IAF, Tab 1. She re -raised her
discrimination and whistleblower reprisal claims. Id. at 12. The administrative
judge gave the appellant notice of the elements and burdens of establishing
jurisdiction over her involuntary retirement appeal, but did not address her
potential whistleblower reprisal claim. IAF, Tab 2 at 2-3.
¶8 Both parties responded to the jurisdictional notice. IAF, Tabs 5 -8, 11. The
administrative judge determined that the appellant failed to make a nonfrivolous
allegation that the agency’s actions had affected her decision -making process in a
way that deprived her of freedom of choice and coerced her retire ment. IAF,
Tab 13, Initial Decision (ID) at 3 -7. Thus, he dismissed the appeal for lack of
Board jurisdiction without holding the appellant’s r equested hearing. ID at 1;
IAF, Tab 1 at 2.
5
¶9 On review, the appellant reiterates that her decision to retire was the result
of the intolerable working conditions caused by the agency’s discriminatory and
retaliatory acts. Petition for Review (PFR) File, T ab 1 at 5-6, 19-20. The agency
has filed a response in opposition to the appellant’s petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The appeal must be remanded for the appellant to make a knowing and informed
election of remedi es.
¶10 Under 5 U.S.C. § 7121 (g), an appellant who has been subjected to an action
appealable to the Board, and who alleges that she has been affected by a
prohibited personnel practice other than a cl aim of discrimination under 5 U.S.C.
§ 2302 (b)(1), may elect one, and only one, of the following remedies: (1) an
appeal to the Board under 5 U.S.C. § 7701 ; (2) a grievance filed under the
provisions of a negotiated grievance procedure; or (3) a n OSC complaint,
potentially followed by an individual right of action (IRA) appeal . Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶ 15 (2016) ; Savage v .
Department of the Army , 122 M.S.P.R. 612 , ¶ 17 (2015) , overruled in part
by Pridgen v. Office of Management & Budget , 2022 MSPB 31, ¶¶ 23-25. An
election under 5 U.S.C. § 7121 (g) is bindi ng only if it was knowing and informed .
Corthell , 123 M.S.P.R. 417, ¶ 17. An agency ’s failure to inform an employee
fully of her potential appeal rights under 5 U.S.C. § 7121 (g) and any limitation on
those rights precludes a finding that the appellant made a knowing and an
informed election of remedies under that provision. Corthell , 123 M.S.P.R. 417 ,
¶ 17 . Here, the agency did not issue a letter of decision regarding the appellant’s
retirement , and its disciplinary actions did not include such notice. IAF, Tab 10
at 15, 28, 37, 45 . Further, there is no indication that she was informed through
other means , such as the agency’s FAD on her EEO complaint . IAF, Tab 9 at
37-39. Thus, we must remand the appeal for the appellant to make a knowing and
informed election of remedies. See Corthell , 123 M.S.P.R. 417 , ¶¶ 17-18
6
(remanding a case for an administrative judge to allow an appellant to make a
knowing and an informed election of his remedy because he had not receive
notice of his option to file an adverse action appeal ).
¶11 On remand, if the appellant elects to pursue an IRA appeal, the
administrative judge should provide her with notice of her jurisdictional burden
and an opportunity to establish jurisdiction over such an appeal. Burgess v. Merit
Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (explaining that
an appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue). To do so , the appellant must show by
preponderant evidence that she exhausted her remedies before OSC, and make
nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C.
§ 2302 (b)(8) or engaged in a protected activity describe d 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 age ncy’ s decision to take or fail to take a
personnel act ion as defined by 5 U.S.C. § 2302 (a). Corthell , 123 M.S.P.R. 417,
¶ 8.
¶12 As to the first element of the jurisdictional burden, the appellant’s report to
the OIG appears to qualify as protected activit y under 5 U.S.C. ¶ 2302 (b)(9)(C ).
Corthell , 123 M.S.P.R. 417 , ¶ 9; see also Weed v. Social Security Administration ,
113 M.S.P.R. 221 , ¶ 12 (2010) ( reflecting that a former employee can make
protected disclosures ). As to the second element, t he Board has found that an
appellant may pursue an involuntary retirement claim as a personnel action in an
IRA appeal. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 10 (2015).
In addition, the appellant’s letters of reprimand, suspension , WIGI denial, and
placement on a PIP are personnel actions. 5 U.S.C. § 2302 (a)(2)(A)(iii) , (ix) ; see
Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234, ¶ 18 (2007) (stating
that a letter of reprimand is a personnel action) ; Hudson v. Department of
Veterans Affairs , 104 M.S.P.R. 283 , ¶ 15 (2006) (explaining that a PIP is
considered a personnel act ion for purposes of an IRA appeal) . The letter of
7
warning also was a personnel action because it cautioned the appellant that
“future misconduct may result in more severe disciplinary action, including
removal.” IAF, Tab 10 at 44; see 5 U.S.C. § 2302 (b)(8) -(9) (providing that a
threat to take a personnel action because of a protected activity or disclosure is
prohibited) ; Campo v. Department of the Army , 93 M.S.P.R. 1, ¶¶ 7-8 (2002)
(finding that a memorandum of warning that included the threat of disciplinary
action for any further m isconduct was a personnel action). Depending on the
circumstances, the agency’s denial of the appellant’s request to relocate offices,
processing of the appellant’s leave, and denial of training also may be personnel
actions , either cumulatively or separa tely. See Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶¶ 15-16 ( finding that agency actions that,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilitie s are actionable in an IRA appeal) ; Hoback v. Department of the
Treasury , 86 M.S.P.R. 425, ¶ 10 (2000) (agreeing with an administrative judge
that denial of training may be a personnel action if the training was reasonably
likely to lead to an appointment, promotion, performance evaluation, or other
action described at 5 U.S.C. § 2302 (a)(2)(A) ); Easterbrook v. Department of
Justice , 85 M.S.P.R. 60, ¶¶ 5, 10, 21 (2000) (adjudicating an appellant’ s
placement on leave without pay following the exhaustion of his an nual and sick
leave as a personnel action).
¶13 We make no finding as to whether the appellant met her jurisdictional
burden to nonfrivolously allege that her disclosures in early 2015 and the summer
of 2016 were protected, or that her alleged protected disclosures or activities were
a contributing factor in any of the alleged agency actions, b ecause the record is
not developed on the jurisdictional issue . If the appellant elects to adjudicate any
or all of the alleged personnel actions as an IRA appeal and meets her burden to
establish Board jurisdiction, the administrative judge will lack jurisdiction over
8
her EEO claims in connection with those actions . Corthell , 123 M.S.P.R. 417 ,
¶ 16.
If the appellant elects to pursue her chapter 75 appeal, the administrative judge
should hold a jurisdictional hearing.
¶14 If the appellant elects to pursue a chapter 75 action as to her alleged
involuntary retirement, the administrative judge should hold the appellant’s
requested hearing on the issue of jurisdiction . IAF, Tab 1 at 2. The
administrative judge found that the Board lac ks jurisdiction over the appellant’s
alleged involuntary retirement because her claims that the agency’s actions were
unjustified were not supported by the record. ID at 5 -6. Further, he concluded
that the evidence suggested that she was considering reti rement for some time .
ID at 6-7. We find that the administrative judge improperly weighed the evidence
at the jurisdictional stage without a hearing.
¶15 A retirement is presumed to be vol untary and outside of the Board’ s
jurisdiction. Putnam v. Department of Homeland Security , 121 M.S.P.R. 532,
¶ 21 (2014). An involuntary retirement, however, is equivalent to a forced
removal within the Board’ s jurisdiction under chapter 75. Id. The touchstone of
the voluntariness analysis and the common element in all Board cases involving
alleged involuntary resignations or retirements is that factors have operated on
the employee’s decision -maki ng processes that deprived her of freedom of choice.
Coufal v. Department of Justice , 98 M.S.P.R. 31 , ¶ 22 (2004). The total ity of the
circumstances is examined under an objective standard to determine
voluntariness. Id. Under that standard, the Board will find a retirement or
resignation involuntary only if the employee demonstrates that under all the
circumstances working c onditions were made so difficult by the agency that a
reasonable person would have felt compelled to resign. Id.
¶16 An appellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary retirement if she makes a nonfrivolous
allegation casting doubt on the presumption of voluntariness. Id., ¶ 23. A
9
nonfrivolous allegation is an allegation of fact that, if proven, could establish a
prima facie case that the Board has jurisdiction over the appeal. Id. Thus, to
establish entitlement to a jurisdictional hearing, an appellant need not allege facts
that, if proven, definitely would establish that the retirement was involuntary; she
need only allege facts that, if proven, could establish such a claim. Id.
¶17 When, as h ere, allegations of discrimination and reprisal for whistleblowing
activity are alleged, such evidence may be addressed at the jurisdictional stage
only insofar as it relates to the issue of voluntariness and not whether the
evidence would establish discri mination or reprisal as an affirmative defense. Id.,
¶ 24. Thus, evidence of discrimination and reprisal goes to the ultimate question
of coercion.4 Id.
¶18 In determining whether the appellant has made a nonfrivolous allegat ion of
jurisdiction entitling her to a hearing, an administrativ e judge may consider an
agency’s documentary submissions. Ferdon v. U.S. Postal Service , 60 M.S.P.R.
325, 329 (1994) . But, 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
conflicting assertion s of the parties and the agency’ s evidence may not be
dispositive. Id. Here, the appellant alleges that she suffered a hostile work
environment beginning in November 2015 and ending with her retirement
4 If the administrative judge determines that the Board has jurisdiction over the
appellant’s adverse action appeal, her appeal will not be subject to the jurisdictional
requirements of an IRA appeal , and the administrative judge should adjudicate the
appellant’s claims of discr imination and reprisal for protected activity and disclosures
as affirmative defenses . PFR File, Tab 1 at 19-26; IAF File, Tab 3 at 13 -15; see
Corthell , 123 M.S.P.R. 417 , ¶ 17 (providing that if, on remand, an appellant made a
knowing and an informed election of pursuing a chapter 75 alleged involuntary
retirement appeal, the adverse action appeal would not be subject to the jurisd ictional
requir ements of an IRA appeal or limited to the issues listed at 5 U.S.C. § 1221 (a));
Savage , 122 M.S.P.R. 612 , ¶ 22 (explaining that if an appellant proved that she suffered
a constructive suspension on remand, the administrative judge should consider whether
the suspension was taken in retaliation for whistleblowin g activity ).
10
approximately 2 years later . IAF, Tab 1 at 7 -8, 11 -12. She submitted her sworn
EEO investigative affidavit, which attests to the facts underlying her claims.
IAF, Tab 6 at 4-19; see 5 C.F.R. § 1201.4 (s) (indicating that an allegation
gene rally will be considered nonfrivolous when it is made under oath or penalty
of perjury, is more than conclusory, is plausible on its face, and is material to the
legal issues in the appeal) .
¶19 This appeal involves a number of actions that the appellant alleg ed created a
hostile work environment and forced her to retire. A combination of workplace
actions , such as a PIP, a diminished performance appraisal , and workplace
isolation, may be sufficient to meet the nonfrivolous pleading standard. Coufal ,
98 M.S.P.R. 31 , ¶¶ 26-27. Here, the appellant alleged that the agency took a
number of punitive actions for 2 years that culminat ed in her perception that she
had no choice but to retire. In sum, during this period, she alleges that the agency
issued her a letter of warning, two reprimands, and a suspension; placed her on a
sick leave abuse plan; denied her a WIGI, placed her on a PI P with unreasonable
work assignments, and rated her as unacceptable on her mid -year and end -of-year
evaluations; and revoked her telework privileges, denied her training, and
required her to submit medical documentation that it already had to support her
reasonable accommodation request .
¶20 The administrative judge considered and discounted a number of the
appellant’s allegations as not substantiated by the record. ID at 5 -6. For
example, he found that the agency’s October 31, 2016 response to the appellan t’s
reasonable accommodation request was “detailed and thoughtful,” and the agency
“reasonably required more medical documentation to address very valid
concerns.” ID at 5. However, in doing so, he did not consider the appellant’s
statement in her affida vit that she had already submitted sufficient medical
information, and that the agency’s mistreatment caused her medical condition to
11
worsen such that she could no longer work.5 IAF, Tab 6 at 13 -14; PFR File,
Tab 1 at 18-19; see Rosario -Fabregas v. Department of the Army , 122 M.S.P.R.
468, ¶¶ 14-15 (2015) (discussing those circumstance in which an agency may
request me dical information under the Americans with Disabilities Act
Amendments Act), aff’d , 833 F.3d 1342 (Fed. Cir. 2016); O’Brien v. Department
of Agr iculture , 91 M.S.P.R. 139 , ¶¶ 8-9 (2002) (finding that the appellant
nonfrivolously alleged that the agency’s actions caused his m edical condition to
worsen, resulting in his retirement).
¶21 In making his jurisdictional finding, t he administrative judge considered
evidence submitted by the agency that the appellant began inquiring about her
retirement option s as ear ly as the end of Se ptember 2016, and expressed her
satisfaction with her retirement decision a couple months later . ID at 6 -7; IAF,
Tab 9 at 54, Tab 11 at 8 -10. We agree that the timing of the appellant’s
retirement and her statements concerning that re tirement are relevant
considerations in the voluntariness determination. E.g., Terban v. Department of
Energy , 216 F.3d 1021 , 1024 (Fed. Cir. 2000) (agreeing with the Board’s decision
to give greater weight to events that occurred closer to an employee’s alleged
involuntary retirement). Nonetheless, in finding this evidence more persuasive
than the appellant’s affidavit attesting to her alleged coerced retirement, the
administrative judge impermissibly weighed the evidence without holding a
jurisdictional hearing to resolve the parties’ conflicting assertions regarding the
Board’ s jurisdiction over the appeal. Walker v. Department of the Army ,
119 M.S.P.R. 391 , ¶ 9 (2013).
¶22 We find that, as alleged, a reasonable pers on in the appellant’s position
could have felt that the age ncy’s actions left her no choice but to retire. Because
5 On review, the appellant disputes many of the administrative judge ’s factual findings.
PFR File, Tab 1 at 16 -19. She also argues that he failed to address all of the agency’s
alleged coercive acts. Id. at 15 -16. In light of our remand for a hearing o n the
jurisdictional issue, we do not reach these arguments.
12
the appellant disputes the agency’s evidence, resolution of this issue requires that
the administrative judge hold a hearing to weigh the evidence and resolve the
conflicting factual assertions . Ferdon, 60 M.S.P.R. at 330 (remanding for a
hearing because the appellant disputed the agency’s evidence and his allegations,
if proven, could establish a prima facie case of Board jurisdiction). Thus, the
administrative judge should hold a jurisdictional hearing if the appellant chooses
to elect her chapter 75 remedy.
¶23 Further, on remand, the administrative judge should rule on the appellant’s
request to extend the period to initiate discovery. The appellant filed a timely
request to extend th is deadline . IAF, Tab 2 at 4 -5, Tab 12. The administrative
judge did not rule on that request below. The appellant is entitled to request
discovery of relevant materials to assist her in meeting her burden of establishing
the Board’s jurisdiction. Russo v. Depart ment of the Navy , 85 M.S.P.R. 12 , ¶ 8
(1999). On remand, the administrative judge should determine whether the
appellant still wishes to engage in the discovery process and set appropriate
deadlines.
ORDER
¶24 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 | AGEE_LONG_JOMICHELE_SF_0752_17_0518_I_1_REMAND_ORDER_1995188.pdf | 2023-01-20 | null | SF-0752 | NP |
3,769 | https://www.mspb.gov/decisions/nonprecedential/CASAS_JULIO_C_DA_0752_17_0182_I_1_FINAL_ORDER_1994484.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JULIO C. CASAS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -17-0182 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Pamela B. Peck , San Antonio, 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 his remov al. On petition for review, the appellant argues that the
administrative judge erred in sustain ing the charge and finding that he failed to
prove hi s affirmative defenses of disparate treatment discrimination based on 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
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
then-girlfriend’s national origin (Mexico) and his se xual orientation
(heterosexual), and harmful procedural error by the agency . The appellant also
challenges the reasonableness of the penalty.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 resul ting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.3 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
2 In analyzing the appellant’s disparate penalty claim, the administrative judge cited
Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010), and the line of cases
following Lewis . ID at 21. We have since overruled Lewis to clarify that, when
analyzing disparate penalty claims, broad similarity between employees is insufficient
to establish that they are appropriate comparators and to hold that the relevant inquiry
is whether the agency knowingly and unjustifiably treated employees who engaged in
the same or similar offenses differen tly. Singh v. U.S. Postal Service , 2022 MSPB 15,
¶ 14. The referen ce to the standard set forth in Lewis was not prejudicial in this case
because, as the administrative judge found, the appellant failed to satisfy even that less
onerous standard. ID at 21 -22.
3 In finding that the appellant failed to prove his affirmativ e defense of disparate
treatment discrimination based on national origin and sexual orientation, the
administrative judge relied on the Board’s decision in Savage v. Department of the
Army , 122 M.S.P.R. 612 , ¶ 42 (2015) , overruled in part by Pridgen v. Office of
Management & Budget , 2022 MSPB 31, ¶¶ 23-25. Neither party has challenged the
analytical framework applied by the administrative judge to these claim s. The Board
has clarified that Savage does not require administrative judges to separate “direct”
from “indirect” evidence; rather, the Board reaffirmed its holding in Savage that the
dispositive inquiry is whether the appellant has shown by preponderant evidence that
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 courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicabl e to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
the prohibited consideration was a motivating factor in the contested personnel action.
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016) , clarified by
Pridgen , 2022 MSPB 31, ¶¶ 23-24; Savage , 122 M.S.P.R. 613, ¶ 51. Although the
initial decision discuss es direct and indirect evidence , we find that the administrative
judge properly considered the evidence as a whole in finding that the appellant failed to
show that discrimination of any type was a motivating factor in his removal. In
addition, because we discern no error with the administrative judge’s motivating factor
analysis or conclusion regarding this claim, we do not reach the question of whether
discrimination was a “but -for” cause of the removal action. See Pridgen , 2022 MSPB
31, ¶¶ 20-22, 29-33.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative 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 informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 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 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.
5 The original statutory provision that provided for judicial review of certain
whistleblower clai ms by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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
/s/ for
Jennifer Everling
Acting Clerk of the Board | CASAS_JULIO_C_DA_0752_17_0182_I_1_FINAL_ORDER_1994484.pdf | 2023-01-19 | null | DA-0752 | NP |
3,770 | https://www.mspb.gov/decisions/nonprecedential/HASAN_DEXTER_M_DA_0831_17_0212_I_1_FINAL_ORDER_1994565.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEXTER M. HASAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0831 -17-0212 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dexter M. Hasan , Metairie, Louisiana, 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
affirmed the Office of Personnel Management’s final decision denying his
application of an annuity under the Civil Service Retirement System (CSRS) . On
petition for review, the a ppellant argues that , although he withdrew funds from
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
his CSRS account, the agency was required to place a portion of a back pay award
he won into his retirement account , which he should have been able to access , but
that it did not do so . Petition for Re view 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 reg ulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL R IGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible c hoices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in gen eral. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuanc e of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
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 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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 c ourts of appeals can be 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 | HASAN_DEXTER_M_DA_0831_17_0212_I_1_FINAL_ORDER_1994565.pdf | 2023-01-19 | null | DA-0831 | NP |
3,771 | https://www.mspb.gov/decisions/nonprecedential/AVERY_ROBERT_HINTON_DC_0752_18_0788_I_1_FINAL_ORDER_1994575.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT HINTON AVERY,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -18-0788 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Hinton Avery , Pembroke Pines, Florida, pro se.
Roburt C . Yale, 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 April 16, 2019 initial
decision in this appeal. Initial Appeal File, Tab 20, Initial Decision; Petition for
Review (PFR) File, Ta b 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
December 19, 2022, and by the agency on December 21, 2022 . PFR File, Tab 5
at 9 . The document provides, among othe r things , that the appellant would
withdraw his MSPB appeal . Id. at 6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988 ). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Manag ement , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will be entered into the record
for enforcement b y the Board. See PFR File, Tab 5 at 9. In addition, we find
that the agreement is lawful on its face and that the parties freely entered into it.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes .
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Ti tle 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this fi nal decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is avai lable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in secu ring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option appl ies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a dis position of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revie w to the EEOC by regular U.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
Enhanceme nt Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 sect ion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent ju risdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for i nformation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Co urtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AVERY_ROBERT_HINTON_DC_0752_18_0788_I_1_FINAL_ORDER_1994575.pdf | 2023-01-19 | null | DC-0752 | NP |
3,772 | https://www.mspb.gov/decisions/nonprecedential/MAYES_RAVEN_SHENETTE_AT_0752_15_0716_I_1_FINAL_ORDER_1994578.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAVEN SHENETTE MAYES ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -15-0716 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Farris Alexander, Jr. , Hawthorne, Florida, for the appellant.
Joved Gonzalez -Rivera , San Juan, Puerto Rico, 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 settled . For the reasons set forth below, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant most recently held the position of Health Technician. Initial
Appeal File (IAF), Tab 1 at 1, Tab 6 at 33. The agency proposed her removal in
May 2014. IAF, Tab 6 at 52 -53. The deciding official sustained the removal in
June 2015. Id. at 44 -46.
¶3 The appellant filed the instant appeal challenging her removal. IAF, Tab 1.
While the appeal was pending, the parties participated in the Board’s Mediation
Appeals Process and reached a settlement that was signed by the appellant, her
representative, and agency officials. IAF, Tabs 19 -20. As a result, the
administrative judge issued an initial decision on March 22, 201 6, dismissing the
underlying removal appeal as settled. IAF, Tab 21, Initial Decision (ID). The
decision noted that it would become final on April 26, 2016, unless a petition for
review was filed by that date. ID at 3. On November 14, 2016, the appella nt
filed a petition for review containing arguments concerning the merits of her
removal. Petition for Review (PFR) File, Tab 1. After instructions from the
Clerk of the Board concerning timeliness, the appellant also filed a motion to
accept her petitio n as timely. PFR File, Tabs 2 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date
of issuance of an initial decision. 5 C.F.R. § 1201.114 (e). The Board will waive
this time limit only upon a showing of good cause for the delay in filing.
5 C.F.R. § 1201.114 (f). To establish good cause for the untimely filing of an
appeal, a party must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her show ing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune which simi larly shows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army , 68 M.S.P.R. 6 0, 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶5 The appellant asserts that, although she signed and dated the settlement
agreement, she did so before relevant terms were added to the document. PFR
File, Tab 3 at 6. According to the appellan t, only her representative agreed to the
final terms , and he failed to send her a copy of the agreement until months later,
in October 2016, after which she filed the instant petition for review and fired her
representative. Id. at 5 -8.
¶6 Considering the aforementioned factors, we find that the appellant has
failed to establish good cause for her untimely petition. The length of the delay,
more than 6 months, is significant. See Alvarado v. Defense Commissary Agency ,
88 M.S.P.R. 46 , ¶¶ 4 -5 (2001) (recognizing that a filing delay of almost 2 months
was significant). In addition, even if we were to accept the appellant’s assertion
that she did not receive a copy of the March 2016 signed settlement agreement
until her representative provide d her with a copy in October 2016, it is well -
settled that an appellant is responsible for the errors of her chosen representative .
Sofio v. Int ernal Revenue Service , 7 M.S.P.R. 667, 670 (1981).
¶7 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decisio n 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 HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
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 Employ ment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opp ortunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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 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 interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | MAYES_RAVEN_SHENETTE_AT_0752_15_0716_I_1_FINAL_ORDER_1994578.pdf | 2023-01-19 | null | AT-0752 | NP |
3,773 | https://www.mspb.gov/decisions/nonprecedential/DUCEATT_MICHAEL_EDWARD_CH_0839_17_0179_I_1_FINAL_ORDER_1994580.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL EDWARD DUCEA TT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0839 -17-0179 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Edward Duceatt , Portage, Michigan, pro se.
Deborah L. Lisy , Esquire, Chicago, 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
affirmed the final agency decision denying his request for corrective action under
the Federal Erroneous Retirement Coverage Corrections Act (FERCCA) , denied
his complaint under the Uniformed Services Employment and Reemployment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Rights Act of 1994 (USERRA) , dismissed his complaint under the Veterans
Employment Opportunities Act of 1998 (VEOA) , and dismissed his challenge to
his probationary termination . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based 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 failed to establish his USERRA claim ,
we AFFIRM the initial decision, which is now the Board ’s final decision.
5 C.F.R. § 1201.113 (b).
¶2 On petition for review, the appellant argues that the administrative judge
erred in affirming the agency’s FERCCA denial, in denying his USERRA claim,
and in dismissing his VEOA appeal as unexhausted. He also reasserts his
challenge to his 1985 probationary termination.2 In addition, he appears to argue
2 The appellant also submits a motion requesting to reopen the record to “correct[] or
modif [y]” the stipulations identified in the administrative judge’s Order and Summary
of Status Conference and a second motion requesting reopening based on “recently
rediscovered exculpatory evidence in the form of the agency stipulation.” Petition for
Review File, Tabs 7, 11; Initial Appeal File (IAF), Tab 21. The appellant does not
specifically identify which of the stipulations he wishes to correct or identify how they
were erroneous. To the extent he is challenging additional stipulations that he did not
object to below, the Board will not consider this argument on review. See Brown v.
Department of the Army , 96 M.S.P.R. 232 , ¶ 6 (20 04) (noting that the Board will not
consider objections to an administrative judge’s summary that the party failed to
3
for the first time that the agency ’s decision reducing his veterans ’ preference
eligibility from 10 points to 5 points also constitute d discrimination in violation
of USERRA. Petition for Review ( PFR ) File, Tab 2 at 16 -17; Tab 10 at 15.
Although the Board generally does not consider arguments raised for the first
time on review, Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
(1980), the appellant may have tried to raise this argument below , and the
administrative judge did not address it, Initial Appeal File ( IAF), Tab 23.
Because the Board construes claims under USERRA broadly and liberally, and
because the appellant is pro se, in an overabundance of caution we have
considered any potential argument that the appellant ’s preference point reduction
also c onstituted a USERRA violation. See Gossage v. Department of Labor ,
118 M.S.P.R. 455 , ¶ 10 (2012).
¶3 As the administrative judge note d in addressing the appellant ’s VEOA
claim, the agency reduced the appellant ’s veterans ’ preference status based on the
rating documentation it had available at the time it made the determination. IAF,
Tab 28, Initial Decision at 15. Specifically, the ag ency asserted , and the
appellant does not dispute , that in October 2013, prior to the preference status
change , it informed the appellant that it did not have information on file
concerning his disability rating and requested that he provide an updated cop y of
preserve below). Regarding the stipulation the appellant objected to below —namely,
his request to modify stipulation 18 to reflect that h e had 6 years, 4 months, and 18 days
of “Frozen” Civil Service Retirement System (CSRS) service prior to his Federal
Employees Retirement System election —because we ultimately agree with the
administrative judge’s determination that the appellant’s militar y service was not
creditable civilian service for the purpose of determining CSRS retirement eligibility,
the appellant’s request is denied. IAF, Tabs 21-22; see Tizo v. Office of Personnel
Management , 325 F.3d 1378 , 1380 (Fed. Cir. 2003) (holding, in determining whether
military service qualified as covered service for the purpose of establishing CSRS
eligibility, that under the 1948 retirement law, “civil servants were required to meet the
five-year service requirement ‘exclusive of’ military service.”); Villanueva v. Office of
Personnel Management , 980 F.2d 1431 , 1432 -33 (Fed. Cir. 1992) ( finding the
“contention that . . . military and civilian service should be combined is . . . expressly
precluded by the [Civil Service Retirement Act of 1948].”).
4
the Department of Veterans Affairs ’ disability rating decision letter. IAF, Tab 8
at 67. The appellant failed to provide the rating letter, so the agency eventually
changed his rating status from code “3” (10-point eligible) to code “2” (5‑point
eligible) and issued an updated Postal Service Form 5 0 reflecting that change. Id.
at 65-66. The appellant has not challenged this characterization on review.
Accordingly, we conclude that the appellant has failed to adduce any evidence
that the a gency ’s preference point reduction was based on any improper
motivation and consequently, did not meet his burden of proving discrimination
in violation of USERRA.3 See Sheehan v. Department of the Navy , 240 F.3d
1009 , 1013 -15 (Fed. Cir. 2001) (requiring an individual to initially show by
preponderant evidence that his military status was at least a motivating or
substantial factor in the agency action, upon which the agency must prove by
preponderant evidence that the action would have been taken for a valid reason
despite the protected status ).
¶4 Regarding the appellant ’s argument, raised for the first time on review, that
the agency ’s decision de nying his request for corrective action under FERCCA
was “three years late, ” PFR File, Tab 2 at 4 -5, the appellant does not explain how
this delay entitles him to corrective action under FERCCA. The appellant also
makes a number of arguments for the first time in his reply to the agency ’s
response to his petition for review, including that the agency engaged in unlawful
discrimination, whistleblower retaliation, and reprisal for union activity and for
3 After the record closed on review, the appellant submitted a motion requesting leave
to file a Department of Veterans Affairs disability rating letter dated October 20, 2020.
See PFR File, Tab 11 at 6. Because the agency based its rating determination on the
information it had available a t the time, and because we ultimately conclude that the
agency’s preference point reduction was not based on any improper motive, the
October 20, 2020 rating letter is immaterial , and we deny the appellant’s request. See
5 C.F.R. § 1201.114 (k) (noting that the Board may accept additional pleadings, other
than those provided for in 5 C.F.R. § 1201.114 (a), only if the ev idence is new and
material and the party submitting it shows that it was not available prior to the close of
the record on review); 5 C.F.R. § 1201.115 (d).
5
the filing of a prior Board appeal. He also asserts that the agency created a
hostile work environment and contributed to his loss of Office of Workers’
Compensation benefits. PFR File, Tab 10 at 8 -9, 13, 17 -18. The Board ’s
regulations make clear that a rep ly is limited to the issues raised by another party
in the response to the petition for review, and the reply may not raise new
allegations of er ror. 5 C.F.R. § 1201.114 (a)(4); see Bost on v. Department of the
Army , 122 M.S.P.R. 577 , ¶ 5 n.3 (2015) (declining to consider new arguments
that were first raised in a reply brief). Therefore , we have not consider ed these
arguments, raised for the first time in the appellant ’s reply.
¶5 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, c onstitutes 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 offe r the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any ma tter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
7
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 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:
8
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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 “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 | DUCEATT_MICHAEL_EDWARD_CH_0839_17_0179_I_1_FINAL_ORDER_1994580.pdf | 2023-01-19 | null | CH-0839 | NP |
3,774 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_GRACE_E_AT_0752_17_0172_I_1_FINAL_ORDER_1994584.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GRACE E. ANDERSON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -17-0172 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Grace E. Anderson , Evans, Georgia, pro se.
Mary Rae Dudley , Fort Gordon, 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
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 findings of material fact; t he 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
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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 By letter dated August 15, 2016, the agency notified the appellant that she
would be separated from her nonap propriated f und (NAF) position as a Child
Youth Program Assistant with the agency’s Child Youth School Services (CYSS) ,
effective August 24, 2016. Initial Appeal File (IAF), Tab 1 at 24 -25. The letter
stated the reason for the appe llant’s separation was that she had issued false
statements and sub mitted false documents to the agency. Id.
¶3 The appellant filed a Board appeal challenging her separation . IAF, Tab 1.
She alleged that she was treated unfairly , subjected to a hostile work
environment, termin ated on the basis of her race, retaliated against for being a
whistleblower , and denied due process . Id. at 1-8, 10 -11, 13-14, 17-18, 20, 27 .
Documents in the appellant’s initial appeal reference or explicitly state that she
was a n NAF employee. Id. at 6-8, 24, 33 -36, 40 -41.
¶4 The administrative judge issued an order informing the appellant of her
burden of proof on jurisdiction and directing her to provide evidence and
argument establishing the Board ’s jurisdiction over her appeal . IAF, Tab s 5-6.
After providing the parties with the opportunity to respond to the order, the
3
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction . IAF, Tab 8, Initial Decision (ID) at 2-3. The administrative judge
found that the appellant was an NAF employee, and as such, she was not an
“employee” with Board appeal rights under 5 U.S.C. chapter 75. Id. Because the
administrative judge found that the Board lacked jurisdiction over the appeal , she
declined to address the apparent untimeliness of the appellant’s appeal . Id. at 2,
n.1.
¶5 The appellant filed a petition for review . Petition for Review (PFR) File,
Tab 1. The agency responded to the appellant’ s peti tion, arguing that she did not
establish Board jurisdiction over her app eal and that both the appeal and petition
for review were untimely filed . PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board ’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule , or regulation . Mad dox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of establish ing Board jurisdiction by p repond erant evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A).
¶7 Under s ection 2105 of Title 5, the provision defining “employee” for
purposes of that title, an employee paid from nonappropriated funds is, with
certain exceptions not relevant here, not an “employee ” for the purpose s of laws
administered by the Of fice of Personnel Management. 5 U.S.C. § 2105 (c). The
Board previously has found that 5 U.S.C. § 2105 (c) excludes NAF employees
from those employees with rights to appeal adverse actions to the Board under
5 U.S.C. § 7513 (d). Clark v. Army & Air Force Exchange Service , 57 M.S.P.R.
43, 44-45 (1993). It is undisputed that the appellant was an N AF employee. IAF,
Tabs 1, 4. Thus, the administrative judge correctly found that the Board lacks
jurisdiction over the appellant’s removal appeal .
4
¶8 For the first time on review, the appellant suggests that the agency is not
complying with three executive orders that discuss u sing plain language in
Government documents. PFR File, Tab 1 at 2-3; Exec. Order No. 13,563, 76 Fed.
Reg. 3,821 ( 2011); Exec. Order No. 12,988, 61 Fed. Reg. 4,729 (1996); Exec.
Order No. 12,866, 58 Fed. Reg. 51,735 (1993) . Yet, she does not provide any
argument of how these executive orders could establish Board jurisdiction over
her appeal , and we find that nothing in these executive orders provides any basis
for establishing Board jurisdiction over her removal .
¶9 The appellant also alludes to NAF collective bargaining agreements (CBA)
without stating whether she is subject to a CBA, and without providing any
argument for how any such CBA might establish Board jurisdiction. PFR File,
Tab 1 at 3. We find that the mere presence or lack of an NAF CBA does not
provide any basis for Board jurisdiction.
¶10 In addition, the appellant renews her whistleblower retaliation and
discrimination claims, asserting that her supervisors terminated her because she
reported them to the union and tha t they also had made racial slurs against her.
Id. at 9, 11 -12. However , allegations of prohibited personnel practices under
5 U.S.C. § 2302 (b), such as racial discrimination, are not an independ ent source
of Board jurisdiction. Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980),
aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). Additionally, the Board lacks
jurisdiction to hear claims of whistleblowing retaliation from NAF employees.
See Clark v. Merit Systems Protection Board , 361 F.3d 647 , 651 (Fed. Cir. 2004)
(holding that an employee serving in a NAF position has no right of appeal to the
Board for alleged violations of t he Whistleblower Protection Act ); DeGrella v.
Department of the Air Force , 2022 MSPB 44 ¶ 15 (finding that , despite the
amendments to the whistleblower protection statutory scheme since the issuance
5
of Clark , an employee in a NAF position has no right to file a whistleblower
reprisal appeal with the Board) .2
¶11 Based on our review, we find no reason to disturb the initial decision. We
therefore affirm the administrative judge ’s dismiss al of the appellant’s appeal for
lack of Board jurisdiction.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).
Althou gh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to fi le within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 The appellant also asserts that she was denied due process because she did not receive
notice of her separation. PFR File, Tab 1 at 4. This argument is not material to the
dispositive issue of ju risdiction , and we therefore will not address it further .
3 Given our finding that the Board does not have jurisdiction over any of the appellant’s
claims, we do not reach the timeliness questions presented by the appellant’s filing of
her initial appeal or her petition for review. See Beaudette v. Department of the
Treasury , 100 M.S.P.R. 353 , ¶ 11 (2005) (observing that , when the Board’s lack of
jurisdiction is clear, an appeal should be dismissed on the basis of jurisdiction rather
than timeliness).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights include d 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 pe tition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washingto n, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
conta ined within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a giv en case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in par t, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Cir cuit), within 30 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 tha n 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 -appointe d lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your disc rimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compe tent jurisdiction expired on
December 27, 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 wit h the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ANDERSON_GRACE_E_AT_0752_17_0172_I_1_FINAL_ORDER_1994584.pdf | 2023-01-19 | null | AT-0752 | NP |
3,775 | https://www.mspb.gov/decisions/nonprecedential/BROOKINS_KARL_DE_0432_18_0359_I_1_REMAND_ORDER_1994592.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KARL BROOKINS,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-0432 -18-0359 -I-1
DATE: January 19, 2023
THIS ORDER IS NONPRECEDENTIAL1
Karl Brookins , Honolulu, Hawaii , pro se.
Deborah E. Yim , Esquire, Lakewood, Colorado, 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.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 5 U.S.C. chapter 43. For the reasons set forth below,
we GRANT the petition for review, VACATE the initial decision, and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the appeal to the Denve r Field Office for further adjudication consistent with
Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir.
2021).
BACKGROUND
¶2 Prior to the removal at issue in this appeal, the agency employed the
appellant as a GS -12 Fish Biologist in the Ocean and Coastal Resources Branch,
Water Resources Division (WRD) of the National Park Service (NPS). Initial
Appeal File (IAF), T ab 8 at 25, 27. As a Fish Biologist, the appellant was
responsible for providing “direct technical assistance to parks in the areas of
fisheries management, habitat restoration, and population recovery” and “liaison
with fisheries professionals in the aca demic community, as well as regulatory
compliance, training, and other professional assistance” in support of the
agency’s activities. IAF, Tab 10 at 77 -80.
¶3 On May 2, 2017, the appellant’s supervisor placed him on a 90 -day
performance improvement plan ( PIP) to give him an opportunity to improve his
performance to at least minimally successful for critical element 5. IAF, Tab 19
at 83-87. On July 31, 2017, she notified him that he had successfully completed
the PIP. IAF, Tab 9 at 96. Just over 5 month s later, on January 11, 2018,2 his
supervisor placed him on a second PIP to allow him an opportunity to improve his
performance to at least minimally successful in critical elements 1 and 2 by
completing specified tasks —namely, for critical element 1, one panel -reviewed
funding proposal and, for critical element 2, one approved interagency program
initiative —within 42 days. IAF, Tab 8 at 72, Tab 9 at 70-73.
¶4 On May 2, 2018, the appellant’s supervisor proposed his removal under
chapter 43 for “failure to ac hieve an acceptable level of performance after
2 The agency also denied the appellant’s within -grade increase (WIGI). The appellant
appealed both the denial of his WIGI and his placement on the PIP. Brookins v.
Department of the Interior , MSPB Docket Nos. DE -531D -18-0028 -I-1, DE -3443 -18-
0140 -I-1. His petitions for review in those appeals were resolved in separate decisions.
3
unsuccessful completion of a [PIP].” IAF, Tab 8 at 71-75. She explained that he
did not timely complete either project required by the PIP and that his
performance was thus unsatisfactory in both critical el ements 1 and 2. Id. After
the appellant responded, the deciding official issued a decision letter removing
him effective June 18, 2018. Id. at 27-31, 46 -52. The appellant filed a Board
appeal in which he contested the merits of the removal and raised d ue process and
harmful procedural error affirmative defenses. IAF, Tabs 1, 7, 14, 21 -22, 27, 38.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision affirming his removal. IAF, Tab 40, Initial Decision (I D).
¶5 The appellant has filed a petition for review, the agency has responded, and
the appellant has replied to the agency’s response. Petition for Review (PFR)
File, Tab 1, 3 -4.
ANALYSIS
Although the administrative judge correctly found that the agency m et its burden
to prove most of the elements of its performance -based charge by substantial
evidence, we must remand the appeal for consideration of an additional element .
¶6 At the time the initial decision was issued, the Board’s case law stated that,
in a p erformance -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 appellant the performance st andards and critical elements of his 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 his perfor mance during
the appraisal period and gave him a reasonable opportunity to improve; and
(5) the appellant’s performance remained unacceptable in at least one critical
element.3 White v. Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5
3 Substantial evid ence 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).
4
(2013).4 In this case, the administrative judge found that the agency proved all of
these elements. ID at 6 -20. On review, the appellant challenges the
administrative judge’s determinations that his performance standards were valid,
that the agency informed him of the deficiencies in his performance and afforded
him a reasonable opportunity to improve, and that hi s performance remained
unacceptable in at least one critical element.5 PFR File, Tabs 1, 4.
The administrative judge correctly found the performance
standards valid.
¶7 Performance standards must, to the maximum extent feasible, permit the
accurate apprais al of performance based on objective criteria. 5 U.S.C.
§ 4302 (c)(1); Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 29
(2010). Standards must be reasonable, realistic, attainable, and clearly stated in
writing. Lee, 115 M.S.P.R. 533 , ¶ 29. Provided these requirements are met,
however, the Board will defer to managerial discretion in determining what
agency employees must do to perform acceptably in their positions. Id.
¶8 Here, the appellant’s Employe e Performance Appraisal Plan (EPAP)
contained five critical elements, and the agency rated his performance on a
five-tiered rating system, in which the possible ratings were exceptional, superior,
fully successful, minimally successful, and unsatisfactory.6 IAF, Tab 9 at 75 -94.
For each critical element, the EPAP set forth three components that must be met
4 Although White provides that criterion 3 requires that performance standards must be
valid under 5 U.S.C. § 4302 (b)(1), the National Defense Authorization Act of 2018
redesignated subsection 4203(b) as subsection 4302(c). Pub. L. No. 115-91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).
5 The appellant has not challenged, and we discern no reason to disturb, the
administrative judge’s findings that the a gency established that OPM approved the
agency’s performance appraisal system and that the agency communicated the
performance standards and critical elements of his position to him. ID at 5 -7; IAF,
Tab 7 at 4 -5.
6 OPM approved this five -level performance appraisal system in 2005. IAF, Tab 10
at 82.
5
in order to achieve each rating level. Id. As relevant here, the EPAP specified
that, to achieve a rating of minimally successful in critical element 1, the
appellant must meet the following requirements: (1) develop at least one
approved peer -reviewed publication, presentation, or webinar; (2) independently
develop and submit at least one panel -reviewed funding proposal to provide
additional service to parks; and (3) develop at least one new working relation and
maintain existing working relationships to accomplish specified tasks. IAF,
Tab 9 at 77. To achieve a rating of minimally successful in critical element 2, he
must meet the following require ments: (1) participate in at least one
collaborative effort that results in tangible benefits to NPS; (2) initiate and
develop at least one collaborative effort that results in tangible benefits to NPS;
and (3) d evelop at least one approved interagency pr ogram initiative that support s
NPS goals . Id. at 80. For purposes of the annual performance appraisal, the
appellant had to meet all three components to achieve a rating of minimally
successful; if he failed to do so, he would receive a rating of unsatisfactory in that
critical element. Id. at 77, 80.
¶9 In the initial decision, the administrative judge found that critical
elements 1 and 2 were written, measurable, and attainable. ID at 7 -11. He
explained that, to the extent the standards required subjective interpretation, it
was unavoidable given the qualitative aspects of the appellant’s scientific field
and the agency’s mission. ID at 9, 11. In findi ng the standards attainable, he
credited the appellant’s supervisor’s testimony that two other scientists had been
able to satisfy the same standa rds, in addition to fulfilling their other duties,
without complaint. ID at 9. Accordingly, he concluded that the performance
standards were valid.7 ID at 10 -11.
7 In assessing whether the appellant’s performance standards were attainable, the
administrative judge considered but found lacking in credibility the appellant’s cla im
that the status reports he was required to submit to his supervisor during the PIP period
took him 8 hours per week. ID at 9 -10. However, the effect of a PIP requirement on
the appellant’s ability to successfully complete the PIP appears to be more
6
¶10 On review, the appellant argues that, in considering whether the
performance standards we re valid, the administrative judge erred in applying
5 U.S.C. § 4302 (b)(1), rather than 5 U.S.C. § 4302 (c). PFR File, Tab 1 at 16-19.
As noted above, t he National Defense Authorization Act of 2018 redesignated
subsection 4203(b) as subsection 4302(c). Pub. L. No. 115-91, § 1097(d)(1)(A),
131 Stat. 1283, 1619 (2017). Accordingly, section 4302(c)(1) now sets forth the
statutory requirement s for a valid performance standard, i.e., to the maximum
extent feasible, performance standards must permit the accurate evaluation of job
performance on the basis of objective criteria related to the job in question for
each employee. 5 U.S.C. § 4302 (c)(1). Although the appellant is correct that the
administrative judge incorrectly cited to section 4302(b)(1), rather than
section 4302(c)(1), this citation error did not affect the outcome of the a ppeal
because he set forth and applied the correct law for assessing whether
performance standards are valid. ID at 7 -10; see Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984) (providing that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
¶11 The appellant next argues that his performance sta ndards were not valid
because, counting the critical elements and their components, the PIP involved
6 “legally -defined elements” and his performance standards contained a total of
17 “legally -defined elements,” which both exceed the limit of 5 critical el ements
approved by OPM. PFR File, Tab 1 at 17-19. The Board has long held, however,
that a critical element may include subelements and that the incumbent of a
position for which a compound standard has been established may be required to
perform accepta bly with respect to each of those subelements. Lee, 115 M.S.P.R.
appropriately considered as a challenge to the adequacy of the appellant’s opportunity
to improve. See White , 120 M.S.P.R. 405 , ¶ 5 . Accordingly, we address the
administrative judge’s findings on this point and the appellant’s challenges to them
below in our discussion of whether the agency met its burden to show that it gave the
appellant a reasonable opportunity to improve .
7
533, ¶ 31; Shuman v. Department of the Treasury , 23 M.S.P.R. 620 , 627 -28
(1984). Here, the subelements/components set forth under critical elements 1 and
2 contribute to the clarity of the appellant’s perform ance standards by describing
the quality, quantity, timeliness, and manner of performance required to be
appraised at a particular level of performance and are consistent with his job
description. See Lee , 115 M.S.P.R. 533 , ¶ 31; Shuman , 23 M.S.P.R. at 627 -28;
5 C.F.R. § 430.203 (defining “performance standard”). Thus, the fact that each
broadly labeled critical element contained component parts does not render the
performance standards invalid.
¶12 The appellant also argues that his performance standards did not conform to
the “a gency -wide performance levels” in the agency’s Departmental Manual
(DM), which define in general terms each rating level,8 and instead required him
to complete specific tasks.9 PFR File, Tab 1 at 19 -20; IAF, Tab 24 at 12-13. The
Board’s inquiry into the validity of performance standards, however, is limited to
whether they permit the accurate evaluation of job performance on the basis of
objective criteri a and are reasonable, realistic, attainable, and clearly stated in
writing. Lee, 115 M.S.P.R. 533 , ¶ 29. Provided these requirements are met, an
agency is free to set its performance standards as high as it thinks appropriate and
to util ize “absolute” performance standards —i.e., under which a single incident
of poor performance will result in an unsatisfactory rating on a critical element.
See Jackson v. Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶¶ 9-15 (2004).
Here, we find that the appellant’s performance standards were valid because they
8 For ex ample, the DM defines “fully successful” as “a good, sound performance that
meets organizational goals while effectively applying technical skills and
organization al knowledge to get the job done.” IAF, Tab 24 at 12 -13.
9 The appellant appears to raise th is argument for the first time on review. Nonetheless,
we have considered it because it appears to pertain to the validity of his performance
standards. See Neal v. Defense Logistics Agency , 72 M.S.P.R. 158 , 161 (1996) (stating
that the agency must prove its action was based on valid performance standards, and the
Board is obliged to consider this issue, regardless of whether it has b een raised by the
parties).
8
meet the statutory requirements and discern no merit to his contention that they
are invalid because they require him to perform certain tasks rather than rating
him in accordance with the general definitions in the DM.
¶13 The appellant additionally argues that the panel -reviewed funding proposal
component of cr itical element 1 violates section 4303(b)(1)(A) because it is not
about the “performance by the employee” performing the “critical elements of the
employee’s position.”10 PFR File, Tab 1 at 13, 21 -22. As stated above, however,
so long as performance stand ards are objective and meet the other statutory
requirements, the Board will defer to the agency’s managerial discretion to
determine what the appellant must do to perform acceptably in his position . See
Lee, 115 M.S.P.R. 533 , ¶ 29 . The requirement that the appellant submit a funding
proposal for panel review is related to the appellant’s duties and responsibilities
and permits the accurate evaluation of his job performance on the basis of
sufficiently objective criteria. IAF, Tab 10 at 76-81. Although the outcome of a
panel review and the time required by the panel may be out of the appellant’s
control, he has not alleged or shown that the agency imposed the panel review
requirement in an unreasonable manner. See Guillebeau v. Department of the
Navy , 362 F.3d 1329 , 1334, 1337 (Fed. Cir. 2004) (finding that a requirement that
“[a]ll web pages be peer reviewed prior to final submission” was not invalid
because the agency applied the requirement in a reasonable manner).
Accordingly, we discern no basis to conclude that the panel -reviewed funding
proposal component of critical element 1 was invalid .
¶14 Lastly, the appellant argues that, in finding the performance standards
attainable, the administrative judge erred by comparing his work, as the “only
marine fish biologist,” to the “non -fish biologists.” PFR File, Tab 1 at 9. This
10 Section 4303(b)(1)(A) provides that, when an agency proposes to demote or remove
an employee for unacceptable performance under chapter 43, he is entitled to 30 days’
advance written notice of the proposed action, which iden tifies the “specific instances
of unacceptable performance by the employee” and “the critical elements of the
employee’s position involved in each instance of unacceptable performance.”
9
cursory argument, however, does not establish error in the administrative judge’s
determination that his performance standards were attainable. Moreover, we
discern no basis to disturb the administr ative judge’s decision to credit the
appellant’s supervisor’s testimony that other scientists were able satisfy the same
standards as the appellant, in addition to fulfilling their other duties, without
complaint. See Purifoy v. Department of Veterans Aff airs, 838 F.3d 1367 , 1373
(Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’s
demeanor -based credibility determinat ions “[e]ven if demeanor is not explicitly
discussed ”).
¶15 In light of the foregoing, we agree with the administrative judge that the
appellant’s performance standards were valid.
The administrative judge correctly found that the agency warned the
appellant of his performance deficiencies and afforded him an
opportunity to improve.
¶16 The agency next must prove by substantial evidence that it warned the
appellant of the inadequacies of his performance during the appraisal period and
gave him an adequate opportunity to improve. Towne v. Department of the Air
Force , 120 M.S.P.R. 239 , ¶¶ 6, 8 (2013 ). OPM’ s regulations gov erning
performance -based actions under chapter 43 require that , “[a]s part of the
employee ’s opportunity to demonstrate acceptable performance, the agency shall
offer assistance to the employee in improving unacceptable performance.”
5 C.F.R. § 432.104 . The employee’s right to a reasonable opportunity to improve
is a substantive right and a necessary prerequisite to all chapter 43 actions. Lee,
115 M.S.P.R. 533 , ¶ 32. In determining whether an agency has afforded an
employee a reasonable opportunity to demonstrate acceptable performance,
relevant fact ors 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.
10
¶17 Here, the appellant’s supervisor advised him in the January 11, 2018 PIP
memorandum that, as discussed at his October 2017 year -end performance
review, his performance in critical elements 1 and 2 was unsatisfactory and that
he would be placed on a PIP to allow him an opportunity to improve his
performance in each element to at least minimally successful. IAF, Tab 9
at 70-73. She stated that, to be considered minimally successful by the end of the
PIP period, the appellant must do the following: (1) for critical element 1,
independently develop and submit “one panel reviewed proposal for funding from
outside of WRD” for a viable project that provided additional services to parks;
and (2) for critical element 2, develop and obtain his supervisor’s approva l for an
“interagency program initiative” supporting the goals of the NPS. Id. at 72. She
further instructed him to submit weekly status reports regarding his progress,
invited him to stop by her office if he had any questions, and warned him that
failur e to improve his performance to minimally successful in critical elements 1
and 2 by the end of the PIP period would be grounds for his removal or demotion.
Id. at 72 -73. Although the PIP memorandum stated that the PIP would end on
February 22, 2018, the appellant requested and received a 1 -day extension due to
the 1 -day Government shutdown, and the PIP ended on February 23, 2018. Id.
at 70; IAF, Tab 8 at 72.
¶18 In the initial decision, the administrative judge found that substantial
evidence established that the agency warned the appellant of his performance
inadequacies in the January 11, 2018 PIP notice, as well as in his October 31,
2017 performance appraisal. ID at 11 -12. Regarding the opportunity to improve,
he found that the appellant received 42 days to demonstrate improvement, that
this was a reasonable amount of time given the nature of the PIP, and that he
should have been able, within 42 days, to develop and submit “at least one panel
reviewed proposal” and to develop “at least one approved in teragency program
11
initiative.”11 ID at 12 -14. He found that the appellant’s supervisor provided him
adequate assistance by requiring him to submit weekly status reports regarding
what he was doing to demonstrate improvement, sending him substantive
guidan ce as to what he needed to do to improve his performance, and offering to
speak to him about his progress. ID at 14 -15. He considered but found incredible
the appellant’s claim that he was not informed that he was expected to obtain
panel review of his f unding proposal during the PIP period. ID at 17 -18. In
addition, he found incredible the appellant’s claim that the status reports took
8 hours per week because he never rebutted his supervisor’s testimony that she
told him not to spend more than 30 minu tes per week on them and because it
appeared that he lacked time management skills when it came to this type of task.
ID at 9-10. He thus concluded that the agency proved by substantial evidence
11 In finding that 42 days was a sufficient amount of time for the a ppellant to complete
the 2 requirements of the PIP, the administrative judge considered the fact that the
appellant had been on notice of the deficiencies in his p erformance in critical
elements 1 and 2 since his March 31, 2017 midyear performance review. ID at 13. As
the administrative judge noted, the Board has previously considered prior warnings of
unacceptable conduct in assessing the reasonableness of the opportunity to improve.
Id.; see Mattes v. Dep artment of the Army , 24 M.S.P.R. 477 , 480 (1984) (noting in a
chapter 43 appeal that, when the appellant received a prior warning of unacceptable
performance and a reminder that timely submissions were critical, a 30 -day
improvement period “would have been sufficient” if the appellant had been given a
reasonable opportunity to demonstrate improvement); see also Ray v. Department of the
Navy , 34 M.S.P.R. 289 , 292 (1987) ( finding in a chapter 75 appeal that 45 days for an
improvement period was sufficient when the appellant had al so been issued letters of
caution and reprimand) . Here, however, it is unclear how prior notice of the appellant’s
performance deficiencies in critical elements 1 and 2, which he received nearly a year
before the beginning of the PIP at issue, relates to the reasonableness of his opportunity
to improve during the PIP period. IAF, Tab 10 at 7-8. In any event, because we agree,
on the basis of other factors, with the administrative judge that the appellant received a
reasonable opportunity to improve, any error in this regard did not affect the outcome
of the appeal. See Panter , 22 M.S.P.R. at 282. Because we do not consider the midyear
performance review in our assessment of the opportunity to improve, we need not
address the appellant’s argument on revi ew that the administrative judge erred in
finding that the midyear performance review placed him on notice that he was “skating
on thin ice” in critical element 2. PFR File, Tab 1 at 23-24.
12
that the appellant received an adequate opportunity to impr ove his performance.
ID at 15.
¶19 On review, the appellant reiterates his claim that the weekly status reports
took him 8 hours per week and argues that the administrative judge erred in
finding that his supervisor told him not to spend more than half an h our per week
on them. PFR File, Tab 1 at 5 -8; ID at 9-10. Although we agree with the
appellant that his supervisor did not testify that she explicitly told him not to
spend more than 30 minutes per week on the report, she did testify that she told
him he was spending too much time on the weekly status reports and that she
estimated they should only take about 30 minutes per week. IAF, Tab 35,
Hearing Transcript (HT) at 209-10 (testimony of the appellant’s supervisor).
Nonetheless, we discern no basis to disturb the administrative judge’s
determination that the appellant’s claim that the status reports required 8 hours
per week is not credible. The appellant has not rebutted his supervisor’s
testimony that she told him he was spending too much time on the status reports
or her testimony th at she did not require that the status reports be in any
particular format. Id. In addition, the evidence of record, including the status
report instructions in the PIP memorandum and the content of the reports
themselves, which include a significant amo unt of recycled material from prior
weeks, establish that they should not have taken the appellant a significant
amount of time each week to complete. ID at 9-10; IAF, Tab 9 at 5 -68, Tab 10
at 72. We further agree with the administrative judge that, if t he appellant spent
8 hours per week on the status reports, it represents a failure on his part to
properly manage his time, rather than an overly burdensome requirement that
deprived him of a reasonable opportunity to demonstrate improvement. ID at 10.
¶20 The appellant also argues that the administrative judge erred in finding
incredible his claim that he was unaware of the requirement that he obtain panel
review during the PIP period on the ground that he did not raise this concern in
his response to the pr oposed removal. PFR File, Tab 1 at 12 -13; ID at 17. He
13
argues that it is “irrelevant to the issue’s fundamental credibility” when he elects
to introduce an issue and that there is no statutory basis for requiring that all
issues that could be raised duri ng an appeal be included in the response to the
proposed action. PFR File, Tab 1 at 13-14. Although there is no requirement that
the appellant raise every argument he intends to raise before the Board in his
response to the proposed action, the consisten cy of prior statements is a relevant
consideration in assessing his credibility. Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987). Accordingly , the Board has found an appellant’s
allegations less credible when he raise d them for the first time on appeal . See,
e.g., Reynolds v. Department of Justice , 63 M.S.P.R. 189 , 195 (1994); Abatecola
v. Veterans Administration , 29 M.S.P.R. 601 , 607 n.3, aff’d, 802 F.2d 471 (Fed.
Cir. 1986) (Table) . In addition, the Board routinely considers an appellant’s
response to the proposed action in assessing claims regarding deficient notice or
confusion with the charges, e.g., Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537 , ¶ 11 (2013); Mouser v. Department of Health & Human
Services , 30 M.S.P.R. 619 , 624 (1986) . We therefore find no basis to disturb the
administrative judge’s determination that the appellant’s claim la cked credibility.
Furthermore, the PIP memorandum specifically stated that, to be considered
minimally successful in critical element 1, the appellant must submit “one panel
reviewed proposal for funding,” i.e., a funding proposal that had been reviewed
by the panel. IAF, Tab 9 at 72. Thus, the appellant knew or should have known
that he was required to obtain panel review of his funding proposal by the end of
PIP period.
¶21 The appellant additionally appears to argue on review that he did not have a
reasonable opportunity to demonstrate improvement because the panel review was
out of his control. PFR File, Tab 1 at 21 -22. While we agree that the panel’s
review of the appellant’s funding proposal was not within his exclusive control,
there is no reason h ere to find that the panel review requirement deprived him of
a reasonable opportunity to improve given that he did not even submit his
14
proposal to the panel within the PIP period. Cf. Sandland v. General Services
Administration , 23 M.S.P.R. 583, 591 (198 4) (finding that the appellant did not
receive a reasonable opportunity to improve when, as a result of his supervisor’s
actions during the improvement period, he was unable to perform the work
required to demonstrate improvement); Mattes v. Department of the Army ,
24 M.S.P.R. 477 , 480 (1984) (finding that the appellant did not receive an
adequate opportunity to improve when the late submi ssion of three reports was
caused by circumstances outside of his control).
¶22 The appellant also argues that the administrative judge failed to consider his
total “compounded” workload during the PIP, which included “one plan, one
proposal, a weekly report ing requirement, and maintaining performance on the
seventeen 2018 performance appraisal components, i.e., a full -time workload plus
the proposal, plan, and reports.” PFR File, Tab 1 at 5-9. We find no merit to the
appellant’s argument that the administr ative judge failed to consider his total
workload in finding that he received an adequate opportunity to improve. See
Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132
(1984) (recognizi ng that an administrative judge’ s failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
decision), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table) . The administrative
judge carefully considered the requirements of the PIP and concluded that the
appellant should have been able to complete them within the 42 -day period. The
appellant has not specifically identified what other work he beli eves deprived him
of a reasonable opportunity to demonstrate improvement in critical elements 1
and 2 during the improvement period, and there is no evidence reflecting that he
raised concerns of this nature with his supervisor at any time during the PIP.
Accordingly, notwithstanding the weekly status reports and the appellant’s other
work requirements, we find no basis to disturb the administrative judge’s
determination that 42 days was a sufficient amount of time to complete the
limited tasks required by the PIP, especially in light of the fact that his supervisor
15
clearly advised him of the importance of focusing on those tasks during the PIP
period. IAF, Tab 8 at 92, Tab 9 at 72 -73.
¶23 The appellant next argues that the PIP requirements became more extensi ve
over the course of his PIP. PFR File, Tab 1 at 23-24. As set forth above , the
January 11, 2018 PIP memorandum s pecifically advised the appellant of his
performance deficiencies and of what he must do to be rated minimally successful
in critical elements 1 and 2 by the end of the PIP —namely, that he must complete
one panel -reviewed funding proposal and one approved interagency program
initiative. IAF, Tab 9 at 72. In addition, both the PIP memorandum and 2017
performance appraisal advised the ap pellant that he must meet all three
components of each critical element and that failure to meet any one of the
components would result in a failure to meet the minimally successful standard.
IAF, Tab 9 at 71, Tab 30 at 8, 11. Ultimately, the appellant’s supervisor found
that the appellant failed to timely complete the tasks specified in the PIP notice
and, for that reason, proposed his removal for failure to achieve an acceptable
level of performance in either critical element 1 or 2. IAF, Tab 8 at 71-75.
Accordingly, we find no merit to the appellant’s claim that the requirements for
him to successfully complete the PIP changed over time .
¶24 In sum, we discern no basis to disturb the administrative judge’s
determination that the appellant received a reaso nable opportunity to improve.
The Board has found that a 30 -day PIP may be sufficient to satisfy an agency ’s
obligation to provide an employee with a reasonable opportunity to demonstrate
acceptable performance. See, e.g. , Melnick v. Department of Housin g & Urban
Development , 42 M.S.P.R. 93 , 101 (1989), aff’d , 899 F.2d 1228 (Fed. Cir. 1990)
(Table) ; Wood v. Department of the Navy , 27 M.S.P.R. 659 , 662 -63 (1985). Here,
the appellant received 42 days to demonstrate improvement by completing
one component of critical element 1 (submit one panel -reviewed funding
proposal) and one component of critical element 2 (one approved interagency
program initiative), and there is no evidence in the record that this length of time
16
unfairly prevented him from demonstrating acceptable perfor mance. See Papritz
v. Department of Justice , 31 M.S.P.R. 495 , 499 (1986) (finding that the appellant
received a reasonable opportunity to improve when there was no evidence the
length of the PIP unfairly prevented him from demonstrating acceptable
performance). To the contrary, the record reflects that he received adequate time
and substantial assistance to complete these limited tasks and that, despite being
informed of the minimum requirements to pass the PIP and encouraged to discuss
his progress with his supervisor, he never requested an extension or expressed
any need for additional time. See id.
¶25 In light of the foregoing, we agree with the administrative judge that the
agency met its burden to show by substantial evidence that it warned the
appellant of his performance deficiencies and afforded him an adequate
opportunity to improve.
The administrative judge correctly found that the appellant’s
performance remained inadequate in at least one critical element .
¶26 Lastly, the agency must show by substantial evidence that, after an adequate
improvement opportunity period, the appellant’s performance remained
unacceptable in at least one critical element. Towne , 120 M.S.P.R. 239 , ¶ 6. A
detailed proposal notice can be considered part of an agency’s valid proof of i ts
allegations in a chapter 43 case; however, the proposal notice alone is insufficient
to meet the agency’s burden of proof and instead must be accompanied by
corroborating evidence. Thompson v. Department of the Army , 122 M.S.P.R. 372 ,
¶ 12 (2015). When an employee is removed on the basis of fewer than all the
components of a performance standard for a critical performance e lement, the
agency must present substantial evidence that the employee’s performance
warranted an unacceptable rating on the performance element as a whole.
Leonard v. Department of Defense , 82 M.S.P.R. 597 , 599 (1999).
17
Critical Element 1
¶27 As noted above, the PIP memorandum stated that, to obtain a rating of
minimally successful in critical element 1, the appellant was required to develop
and submit “one panel reviewed proposal” for funding for a viable project that
provided additional services to parks. IAF, Tab 9 at 72. To fulfill this
requirement, the appellant sent the Division Chief a funding proposal for a Nature
Fund “Fi shscaping” project to “develop scientific capacity in fish echosounding”
at 8:00 p.m. on February 22, 2018. IAF, Tab 8 at 81 -85. In the proposed removal
notice, the appellant’s supervisor stated that, because he emailed his proposal to
the Division Chief at 8:00 p.m. on the night before his PIP deadline, there was no
time to obtain approval from the three supervisors who needed to review the
proposal before submitting it for panel review. IAF, Tab 7 at 72. In addition, she
noted that the appellant’s lat e submission presumed that the panel “would
actually be able to review [his] document with such little notice.” Id. Thus, she
concluded that the appellant’s performance in critical element 1 was
unsatisfactory. Id. The administrative judge found that t he agency proved that
the appellant’s performance remained unacceptable in critical element 1 because
he failed to fulfill his obligation to develop and submit at least one
panel -reviewed proposal within the PIP period. ID at 16 -18.
¶28 On review, the appel lant argues that the administrative judge erred in
finding that he did not improve his performance in critical element 1, ostensibly
because he should not have been required to obtain the supervisory signatures and
panel review during the PIP period. PFR File, Tab 1 at 12 -14. As discussed
above, however, we find unavailing the appellant’s assertion that he was not
aware of the requirement that he obtain panel review during the improvement
period, as well as his alternative argument that he should not have been required
to do so. While we acknowledge that the time required for a panel review is to
some extent out of the appellant’s hands, he did not even submit the completed
proposal to the panel for its review within the PIP period. Rather, he waited unt il
18
8:00 p.m. on the night before the end of his PIP to request the first of the three
supervisory signatures required before he could submit his funding proposal to
Nature Fund for panel review.12 IAF, Tab 8 at 81, Tab 9 at 72. Accordingly, we
agree with the administrative judge that the agency established by substantial
evidence that the appellant failed to demonstrate acceptable performance in
critical element 1.
Critical Element 2
¶29 To be considered minimally successful in critical element 2, the PIP
memorandum stated that the appellant must, by the end of the PIP period, have
developed and obtained his supervisor’s approval for an interagency program
initiative with goals, objectives , activities, and expected outcomes that he would
be able to start working on upon final approval. IAF, Tab 9 at 72. The appellant
submitted two proposals to his supervisor in an attempt to fulfill this requirement.
IAF, Tab 8 at 47, 73. First, on Janu ary 26, 2018, he proposed a “Fundamental
Fishing Information pilot project and Program Initiative”; however, his supervisor
informed him on January 26 and 29, and February 7, 2018, that his proposal was
not interagency and would not satisfy the requirement s of his PIP. Id. at 92-99.
Second, on the evening before the end of his PIP, he emailed his supervisor
requesting approval of an “ecosystem character and fishing impacts interagency
program initiative.” Id. at 77 -79. Although it was the last day of th e appellant’s
PIP, his supervisor responded the next day explaining that this idea was not
interagency and suggesting they “discuss another option and timeframe for
addressing this component of [his] assignment.” Id. at 77. The appellant did not
respond, testifying at the hearing that he did not open his email until after
February 23, 2018, because he was busy working on his last status report. HT
at 148 (testimony of the appellant). In the proposed removal notice, the
12 As the appellant acknowledged in his email to the Division Ch ief, a Nature Fund
requires that funding proposals have three supervisory signatures before being
submitted to the panel. IAF, Tab 8 at 81.
19
appellant’s supervisor reiterated that neither of the appellant’s proposals involved
“interagency” participation and thus found his performance in critical element 2
to be unsatisfactory. IAF, Tab 8 at 73 -74.
¶30 In the initial decision, the administrative judge found that substantial
evide nce supported the appellant’s supervisor’s determination that the appellant’s
two ideas were not interagency and that he failed to fulfill the requirements of
critical element 2. ID at 18 -20. In so finding, he observed that the appellant was
negligent un der the circumstances by failing to check his email on February 23,
2018. ID at 19.
¶31 On review, the appellant argues that administrative judge failed to consider
his argument that the PIP notice did not inform him that he was required to obtain
agreement from a partner agency to work on his plan and that his supervisor
informed him of this requirement only after he submitted his February 22, 2018
idea. PFR File, Tab 1 at 15; IAF, Tab 38 at 17. Although the administrative
judge did not address this argum ent, such error is harmless as the argument is
clearly without merit. See Panter , 22 M.S.P.R. at 282. The PIP notice explicitly
advised the appellant that he must obtain his supervisor’s approval for an
“interagency program initiative,” i.e., a program i nitiative that involves another
agency. IAF, Tab 9 at 72. Contrary to the appellant’s characterization of his
supervisor’s rationale for finding he did not satisfy this requirement, she did not
require him to have approval from a partner agency prior to the end of the PIP
period; rather, she required that his program initiative idea involve collaboration
with another agency. IAF, Tab 8 at 73. Although she stated in the proposed
removal notice that the appellant’s second proposal identified “no one else who
had agreed to participate in the initiative,” this observation was simply one of a
number of things his proposal failed to do, in addition to not identifying another
agency for collaboration, partner tasks, or roles or functions for another agency.
Id. Finally, she noted that, “[a]ll of the listed tasks and outcomes were tasks that
you would work on, and thus there was no ‘interagency’ participation.” Id.
20
Accordingly, we find no merit to the appellant’s contention that the PIP notice
did not place h im on notice of the requirement that his program initiative proposal
involve participation by another agency and agree with the administrative judge
that substantial evidence supports the agency’s finding that the appellant’s
submissions did not satisfy th is criterion.
¶32 The appellant also challenges on review the administrative judge’s
determination that he was negligent under the circumstances, arguing that he had
to turn in his final status report on February 23, 2018, and that he believed the
deadline f or the program initiative was February 22, 2018. PFR File, Tab 1
at 10-11. In other words, he appears to argue that it was reasonable to spend his
workday on February 23, 2018, on his final status report without checking his
email because it was too late to make any further submissions towards successful
completion of his PIP. Even if the appellant believed that February 22, rather
than February 23, 2018, was the last day of his PIP period, we agree that he acted
in a negligent manner in failing to check his emails on a workday, which resulted
in him not seeing his supervisor’s email informing him that his initiative was not
interagency and offering to “discuss another option and timeframe.” Nonetheless,
the finding of negligence is not material to the o utcome here because, as
discussed above, the appellant failed to obtain his supervisor’s approval for an
interagency program initiative before the end of the PIP period, despite her
numerous emails, expressed concerns, and offers to provide additional assi stance
and to work together to come up with an interagency program initiative idea.
IAF, Tab 8 at 92 -99. Thus, even if the administrative judge erred in finding that
the appellant acted in a negligent manner, such error provides no basis to disturb
the i nitial decision. See Panter , 22 M.S.P.R. at 282.
A rating of unsatisfactory in one component of a critical
element is sufficient for an overall unsatisfactory rating.
¶33 The appellant further argues that the administrative judge erred in finding
that his performance was unacceptable in critical elements 1 and 2 because he
21
successfully completed two of the three components of each critical element.
PFR File, Tab 1 at 21 -22; IAF, Tab 38 at 6 -7. However, as the administrative
judge correctly observed, the performance standards made clear that the appellant
must meet “all three components” of the critical element and that a “[f]ailure to
meet any one of the components will re sult in an overall failure to meet the
minimally successful standard.” ID at 16, 18; IAF, Tab 9 at 71, Tab 30 at 8, 11.
Accordingly, we discern no basis to disturb the administrative judge’s
determination that the agency provided substantial evidence tha t the appellant
failed to develop and submit one panel -reviewed funding proposal and one
approved interagency program initiative and that he therefore failed to meet the
minimally successfully standard for critical elements 1 and 2 as a whole, even if
he s atisfactorily completed the other components of the critical elements. See
Leonard , 82 M.S.P.R. 597 , ¶ 6.
We must remand this appeal in light of Santos.
¶34 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 elem ent of its charge . 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, 1363 , that in addition to the five elements of the
agency’s case set forth above, the agency must also “justify the institution of a
PIP” by proving by “substantial evidence that the employee’s performance was
unacceptable . . . before the PIP. ” The Federal C ircuit’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 administrative judge shall accept
22
argument and evidence on this issue, and shall hold a supplemental hearing if
appropriate. Id., ¶ 17.
On remand, the administrative judge should analy ze the appellant’s affirmative
defense that the agency violated the collective bargaining agreement ( CBA ) under
the harmful error standard .
¶35 In the initial decision, the administrative judge found that the agency did
not violate the appellant’s due proces s rights by giving him 15 days to respond to
the notice of proposed removal and prohibiting him from entering his duty station
and contacting his coworkers during the response period because he received a
meaningful opportunity to respond to the proposed r emoval. ID at 20 -21. He
also found that, even if the agency violated the CBA by giving the appellant only
42 days to demonstrate improvement and 15 days to respond to the notice of
proposed removal, he failed to show that such violation was harmful. ID
at 13-14, 21 -22. Accordingly, he concluded that the appellant failed to establish
any affirmative defense.
¶36 On review, the appellant does not challenge, and we discern no basis to
disturb, the administrative judge’s determination that he did not prove an y due
process violation or that the 15 -day response period constituted a harmful
procedural error. However, he reiterates his argument that he should have
received a 90 -day improvement period pursuant to the CBA. PFR File, Tab 1
at 23.
¶37 In finding the a ppellant failed to prove this claim, the administrative judge
relied on his determination that the agency met its burden to prove the charge
including , as relevant here, that the length of the PIP was reasonable. ID
at 13-14. We find his reliance on the agency’s proof of its charge to be in error
because the requirement for the agency to prove that it afforded an appellant with
a reasonable opportunity to improve differs from the appellant’s burden to prove
harmful error . See Lee, 115 M.S.P.R. 533 , ¶ 32 (discussing the relevant factors in
determining if the agency afforded an appellant a reasonable opportunity to
23
improve) . The harmful error standard applies to allegations of agency error in
applying collective bargaining agreements in performance actions brought under
chapter 43 . DeSousa v. Agency for International Development , 38 M.S.P.R. 522 ,
526 (1988). When an appellant alleges that the agency committed a procedural
error, he bears the burden of proving by preponderant evidence that the agency’s
procedural error ca used substantial harm to his rights, i.e., that the agency would
likely have reached different conclusion in the absence of the error.13 Wood ,
27 M.S.P.R. at 663; 5 C.F.R. §§ 1201.4 (r), 1201.56(b)(2)(i)(C). A mere showing
that there was a possibility of prejudice is insufficient. Wood , 27 M.S.P.R.
at 663.
¶38 Here, the appellant argued that the agency violated the CBA by not
affording him at least 90 days to demonstrate improvement and th at “[a]nother
few days beyond the 42 -day PIP would have made a significant difference in the
outcome.” IAF, Tab 38 at 7 -8. Specifically, he alleged that, if he had been given
a longer PIP period, he would have been able to obtain the three signatures
required to approve his proposal and could have addressed his supervisor’s
concerns with the interagency program initiative program idea that he sent to
her on February 22, 2018. Id. at 8. He also claimed that, if he had been given a
90- or 180 -day PIP peri od, he “would have considered continuing to seek
approval for the Fundamental Fishing Information pilot project and Program
Initiative by further addressing his supervisor’s many questions.” Id. He alleges
that he did not do so during his 42 -day PIP beca use, given his supervisor’s
questions and comments, he decided to spend the last 15 days of his PIP
“pursuing a different independent approach.” Id. at 8-9.
¶39 The agency disagrees with the appellant’s contentions. It argues , in
essence, that the appella nt failed to show that if he was on the PIP for a longer
13 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the rec ord 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).
24
period, he likely would have met the PIP requirements. PFR File, Tab 3 at 10-11.
It points to testimony and documentary evidence reflecting that the appellant was
on notice that his performance in critical elements 1 and 2 required improvement
as early a s March 2017. PFR File, Tab 3 at 10 -11. Thus, this issue is in dispute
and resolution may require credibility determinations. Such determinations
should be made in the first instance by the admini strative judge who conducted
the hearing. Fargnoli v. Department of Commerce , 123 M.S.P.R. 33 0, ¶ 18
(2016). Therefore, on remand, the administrative judge should make findings
regarding the appellant’s claim that the agency violated the CBA , applying the
harmful error standard . See Wood , 27 M.S.P.R. at 663.
¶40 In conclusion, we must remand this decision in light of Santos and f or a
new determination regarding the appellant’s claim that the agency violated the
CBA . On remand, the administrative judge shall accept argument and evidence
on whether the agency proved by substantial evidence that the appellant’s pre -PIP
performance w as unacceptable , and shall hold a supplemental hearing on this
issue if appropriate. Lee, 2022 MSPB 11, ¶ 17. The administrative jud ge shall
then issue a new initial decision consistent with Santos and the guidance above .
See id . If the agency makes the additional showing required under Santos on
remand, the administrative judge may incorporate h is prior findings on the other
elements of the agency’s case and the appellant’s other 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, he should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve i ssues 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).
25
ORDER
¶41 For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROOKINS_KARL_DE_0432_18_0359_I_1_REMAND_ORDER_1994592.pdf | 2023-01-19 | null | DE-0432 | NP |
3,776 | https://www.mspb.gov/decisions/nonprecedential/FOGG_BRIAN_CH_0752_17_0460_I_1_FINAL_ORDER_1994607.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRIAN FOGG,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0460 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Meghan U. Lehner , Esquire, Indianapolis, Indiana, for the appellant.
Kyle C. Mardis , Esquire, Indianapolis, Indiana, 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 involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant alleges that the agency did not inform him that his
decision to resign would terminate his appeal rights as to the pending adverse
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
action, and thus , his decision to resign was involuntary . He argues that the
administrative judge misinterpreted the law set forth in Covington v. Department
of Health & Human Services , 750 F.2d 937 , 943 (Fed. Cir. 1984 ), that an
employee’s decision to separate from an agency canno t be binding as a matter of
fundamental fairness and due process when it is “based on misinformation or a
lack of information .” Generally, we grant petitions such as this one only in the
following circumstances : the initial decision contains erroneous fi ndings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or th e initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal , we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision befor e
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | FOGG_BRIAN_CH_0752_17_0460_I_1_FINAL_ORDER_1994607.pdf | 2023-01-19 | null | CH-0752 | NP |
3,777 | https://www.mspb.gov/decisions/nonprecedential/BENTON_BRIAN_L_DC_0752_19_0609_I_1_FINAL_ORDER_1994634.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRIAN L. BENTON,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-0752 -19-0609 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jack Jarrett , Esquire, Washington, D.C., for the appellant.
Christian E. Pagan and Elesha Kelly Brown , 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 petitioned for review of the July 29, 2020 initial decision in
this appeal. Initial Appeal File, Tab 41, Initial Decision; Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal a s
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
December 16, 2022, and by the agency on December 19, 2022. PFR File, Tab 9
at 12 .2 The document provides, among other things, for the dismissal of the
appeal. Id. at 7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they inten d to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 ( 1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel M anagement , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 9 at 11 . We find that dismissing
the appeal with prejudice to refiling (i.e., the parties normally may not refile this
appeal) is appropriate under these circumstances. In addition, we find that the
agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes.
2 This document replaces and supersedes the original settlement document filed as
Tab 8. See PFR File, Tab 9 at 12.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, se ction 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 part y may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately revi ew the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 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 avai lable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in secu ring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option appl ies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a dis position of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revie w to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanceme nt Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 sect ion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent ju risdiction.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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for i nformation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Co urtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BENTON_BRIAN_L_DC_0752_19_0609_I_1_FINAL_ORDER_1994634.pdf | 2023-01-19 | null | DC-0752 | NP |
3,778 | https://www.mspb.gov/decisions/nonprecedential/BURKE_TOBY_SF_0752_17_0334_I_1_FINAL_ORDER_1994646.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TOBY BURKE,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -17-0334 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Toby Burke , Kenai, Alaska, pro se.
Rachel Wieghaus , Washington, D.C. , for the agency.
Kevin D. Mack , Esquire, Sacramento, 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 involuntary resignation appeal for lack of jurisdiction. Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 materi al 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 esta blished any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review . Exce pt as expressly MODIFIED to VACATE the
administrative judge’s finding regarding the precipitating event of the appellant’s
resignation, we AFFIRM the initial decision.
¶2 On review, the appellant submits his “rebuttal” to the initial decision and
largely repe ats his arguments below that he was “over -worked[,]
undercompensated” and subjected to “ unequitable and illegal” treatment by his
supervisor. Petit ion for Review (PFR) File, Tab 2 at 5.2 The appellant argues
that the initial decision was based on “factua l errors and statements taken
completely out of context” in the agency’s submissions below , but he maintains
that these errors are “too numerous to document.” Id. at 9. He argues that the
written format of the Board appeal was prohibitively time consuming , and he
2 Approximately 11 hours after filing his petition f or review, PFR File, Tab 1, the
appellant filed a corrected petition for review “to replace [his] earlier petiti on which
had more than a few spelling and grammatical errors as well as irregular spacing and
unintentional word omissions and additions that interfered with readability and
comprehension,” PFR File, Tab 2 at 4. The appellant maintained that there “were n o
substantive changes only mechanical corrections” in his corrected petition for review.
Id. We have considered both petitions and have determined that neither meet the
standard for granting a petition for review under 5 C.F.R. § 1201.115 .
3
requests that the parties and the administrative judge appear in person so that he
can “dismantle” the agency’s arguments and the administrative judge’s “faulty
analysis and erroneous decision. ” Id. The app ellant contests the administrative
judge’s finding that a reasonable person would not have felt compelled to resign
under the circumstances he set forth regarding his last 10 years of F ederal
employmen t, particularly concerning the agency’s alleged advancement of
underperforming employees over him and failure to investigate his complaints
against his supervisor’s general mismanagement and failure to pay him overtime.
Id. at 5-6.
¶3 As the administrative judge correctly determined, the appellant’s
contentions that he was overworked, treated less favorably than other employees
regarding advancement opportunities, and given unfair work assignments by his
supervisor do not evince the type of intolerable work ing conditions that deprive
an individual of a meaningful choice and would compel a reasonable person in the
appellant’s position to resign. See Vitale v. Department of Veterans Affairs ,
107 M.S.P.R. 501 , ¶ 20 (2007); Miller v. Department of Defense , 85 M.S.P.R.
310, ¶ 32 (2000) ; Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 8-10.
The administrative judge erred , however, to the extent that he weigh ed the
evidence at the jurisdictional stage of the appeal in finding that the “precipitating
event ” in the appellant’s decision to resign was the ag ency’s refusal to grant him
a 5-month leave of absence on short notice. ID at 12; see Ferdon v. U.S. Postal
Service , 60 M.S.P.R. 325 , 329 (1994) (finding that, although the Board may
consider the agency’s documentary submissions in determining whether the
appellant has made a nonfriv olous allegation, 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 conflicting assertions of the parties). Therefore, we
vacate that finding. Nevertheless, we have considered the extensive allegations in
the appellant’s jurisdictional response, from alleged problems with the agency
4
dating back more than 20 years before his resignation to the circumstances
surrounding his requested leave of absence, and we find that he has failed to
make a nonfrivolous allegation3 that he lacked a meaningful choice in his
resignation and that the agency’s wrongful actions deprived him of that choice.
IAF, Tab 5; see Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 (2013).
Because the appellant has not presented nonfrivolous allegations of Board
jurisdiction, he is not entitled to a jurisdictional hearing. See Ferdon ,
60 M.S.P.R. at 329.
¶4 The appellant also asserts on review that he suffered “heart pains from
chronic lack of sleep and the unrelenting stress from work” prior to his alleged
involunta ry resignation. PFR File, Tab 2 at 6. He argues that he had to “take a
break” because he feared that he would have a heart attack. Id. In this regard,
the appellant is expand ing on his general claims regarding “health concerns” and
“stress” in his jurisdiction al response. IAF, Tab 5 at 40. Although a resignation
may be rendered involuntary when an agency improperly denies an employee’s
request for a reasonable accommodation that w ould have enabled him to continue
in his position, the appellant made no such allegation before the administrative
judge below on or review. See Hosozawa v. Department of Veterans Affairs ,
113 M.S.P.R. 110 , ¶ 7 (2010). Although the administrative judge did not address
the appellant’s vague assertions about health concerns directly in the initial
decision, we find that these assert ions provide no basis for Board jurisdiction
over his appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984) (exp laining that an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision).
¶5 Accordingly, we deny the petition for review and affirm as modified the
initial decision.
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
5
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 described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek 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 de cide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
If you submit a petition for review to the U.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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appeala ble to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S . district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Boar d, 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 t he district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repr esentation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.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
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
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statut ory provision that provided for judicial review of certain
whistleblower claims by any court of 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 allow s appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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 | BURKE_TOBY_SF_0752_17_0334_I_1_FINAL_ORDER_1994646.pdf | 2023-01-19 | null | SF-0752 | NP |
3,779 | https://www.mspb.gov/decisions/nonprecedential/MCGEE_JACK_P_AT_1221_10_0202_M_1_FINAL_ORDER_1994650.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACK P. MCGEE,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-1221 -10-0202 -M-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jack P. McGee , Smyrna, Georgia, pro se.
Deryn A. Sumner , Esquire, and Gary M. Gilbert , Esquire, Silver Spring,
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 petition for enforcement as withdrawn. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 The administrative judge issued a n August 15, 2014 initial decision in
which he dismissed the appellant’s petition for enforcement as withdrawn . The
initial decision i nformed the parties that it would become the final decision of the
Board on September 19, 2014 unless a petition for review w as filed by that date.
Initial Decision at 4. On June 17, 2018, the appellant filed a petiti on for review
nearly 4 years out of time. Petition for Review (PFR) File, Tab 1. The Clerk of
the Board informed the appellant that his petition for review appeared to be
untimely filed and instructed him to submit evidence and argument showing that
the petition for review was timely filed or that good cause existed for the delay in
filing. PFR File , Tab 2. The appellant has not responded to the Clerk’s notice.
¶3 A petition for review must be filed within 35 days after the date of issuance
of the initia l decision. Walker v. Department of Health & Human Services ,
111 M.S.P.R. 473 , ¶ 5 (2009) ; Williams v. Office of Personnel Management ,
109 M.S.P.R. 237 , ¶ 7 (2008) . The Board will waive the filing deadline only
upon a showing of good cause for the dela y in filing. Walker , 111 M.S.P.R. 473 ,
¶ 5; Williams , 109 M.S.P.R. 237 , ¶ 7.
¶4 Here, the deadline for filing a petition for review was September 14, 2014
and the appellant filed his petition for review on June 17, 2018. The appellant
has not alleged that he r eceived the initial decision more than 5 days after it was
issued. Although the Clerk afforded the appellant the opportunity to show good
cause for the untimely filing, the appellant has not offered any reason for the
delay in filing his petition for revi ew, and he failed to respond to the Clerk ’s
notice on the untim eliness of his petition for review . Thu s, we find that he has
failed to show good cause for the untimeliness of his petition for review . See Bell
v. Department of Homeland Security , 112 M.S.P.R. 33 , ¶ 8 (2009) ; Garside v.
Office of Personnel Management , 109 M.S.P.R. 65 , ¶ 6 (2008) .
¶5 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
3
decisio n of the Board regarding the dismissal of the petition for enforcement as
withdrawn.
NOTICE OF APPEAL RIG HTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
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 prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCGEE_JACK_P_AT_1221_10_0202_M_1_FINAL_ORDER_1994650.pdf | 2023-01-19 | null | AT-1221 | NP |
3,780 | https://www.mspb.gov/decisions/nonprecedential/HOEFT_TIMOTHY_J_SF_0752_16_0203_I_1_FINAL_ORDER_1994681.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY J. HOEFT,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
SF-0752 -16-0203 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard D. Senders , Esquire, Portland, Oregon, for the appellant.
Richard I. Anstruther , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Le avitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant ’s petition for review generall y challenges the administrative
judge ’s findings that the agency proved the charges, that the appellant failed to
establis h his affirmative defenses, that the agency established nexus , and that the
penalty is within the bounds of reasonableness .2 Petition for Review File, Tab 1.
We have considered the appellant ’s challenge to these findings , and because we
discern no error in the administrative judge ’s well -reasoned initial decision
regarding these matters, we will not disturb them .3 See Crosby v. U.S. P ostal
2 The appellant attaches eight exhibits to his petition for review . Of those attachments,
Exhibits 3 and 5 were not previously submitted into the record. Exhibit 3 appears to be
an excerpt from an agency ’s policy guide. It was available to the appellant prior to the
close of the record and thus is not previously unavailable. Exhibit 5 is an unsigned and
undated declaration from a person who was approved to testify as a witness for the
appellant bu t was not called. The declaration also was available prior to the close of
the record and thus is not new. Under 5 C.F.R. § 1201.115 , the Board will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party ’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The remaining exhibits
are excerpts of documents already in the record. Because these documents are already
part of the record, Initial Appeal File (IAF), Tab 18 at 93 –97, they do not constitute
new evidence. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).
3 In discussing specification 1 of charge 2, the administrative judge referred to an
agency policy that appears to only apply to attorne ys, which the appellant is not. IAF,
Tab 38, Initial Decision at 11 -12; IAF, Tab 31 at 95. This error by the administrative
3
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 references, and made reasoned conclusions); see also
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359
(1987) (same).
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 cla ims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Mer it
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If y ou wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of yo ur case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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.
judge provides no basis to disturb the initial decision , as the record shows that the
appellant did not have the required permissi on to engage in the activities that formed
the basis of the specification. IAF, Tab 13 at 5.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
Court of Appeals for the Federal 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 Appeal s for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
5
representative in this case, and your representative recei ves this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national ori gin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative rec eives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Fede ral 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 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 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.
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 2 7, 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 Fed eral Circuit or any other circuit court 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 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 | HOEFT_TIMOTHY_J_SF_0752_16_0203_I_1_FINAL_ORDER_1994681.pdf | 2023-01-19 | null | SF-0752 | NP |
3,781 | https://www.mspb.gov/decisions/nonprecedential/JOSEPH_TAREVA_RENATA_DC_0752_21_0516_I_1_FINAL_ORDER_1994686.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAREVA RENATA JOSEPH ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -21-0516 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tareva Renata Joseph , Kaiserslautern, Rheinland Pfalz, Germany, pro se.
Everett F. Yates , Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leav itt, 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 findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
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 cours e 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 f ilings 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 de cision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant contends that her appeal is distinguishabl e from
Scott v. Department of the Air Force , 113 M.S.P.R. 434 (2010), which the
administrative judge cited in support of her finding that the appellant was serving
a term appointm ent. The appellant first notes that, whereas she was removed
from the Priority Placement Program (PPP), Mr. Scott was never eligible for the
PPP due to an unacceptable performance rating. See id ., ¶ 9. However, we find
that this is a distinction without a difference. The reason for Mr. Scott’s
ineligibility for the PPP or the appellant’s removal from the PPP does not reveal
the nature of either initial appointment. The Board did note in Scott that the
agency considered Mr. Scott’s performance in decidi ng not to reappoint him, and
it found that this fact alone did not establish jurisdiction. Id. However, there is
nothing in Scott to suggest that the Board viewed the agency’s consideration of
Mr. Scott’s performance as a necessary condition for finding that he was serving
a term appointment.
¶3 The appellant also observes that the Standard Form 50 (SF-50) recording
her separation describes the nature of the action as a removal under chapter 75.
Initial Appeal File (IAF), Tab 6 at 10 -11. We agree that this SF -50 is consistent
with the appellant’s claim that her separation was a removal within the Board’s
3
jurisdiction. However, just as the SF -50 recording the appellant’s initial
appointment is not dispositive, neither is the SF -50 recording her sep aration. See,
e.g., Hunt -O’Neal v. Office of Personnel Management , 116 M.S.P.R. 286 , ¶ 10
(2011) (finding that the SF -50 rec ording the appellant’s removal did not
constitute the personnel action itself, and hence did not suffice to establish that
she was removed before attaining employee status under 5 U.S.C.
§ 7511 (a)(1)(A)). Here, as in Scott , the language of the appellant’s specific
employment agreements indicates that she in fact received an appointment with a
prescribed term of 36 months . See Scott , 113 M.S.P.R. 434 , ¶ 8; IAF, Tab 6
at 91, 97 ; see also id . at 17, 82 (citing the expiration of the appellant’s 3 -year tour
as a basis f or her separation).
¶4 The expiration of a term appointment is not an action appealable to the
Board . Scott , 113 M.S.P.R. 434 , ¶ 9. Accordingly, we affirm the administrative
judge’s finding that the appellant’s separation is outside the Board’s jurisdiction.
Because we find that the Board lacks jurisdiction over this appeal, we do not
reach the merits of the appellant’s claim that th e agency denied her due process .
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
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
with the EEOC no later than 30 calendar days after your representative 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
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | JOSEPH_TAREVA_RENATA_DC_0752_21_0516_I_1_FINAL_ORDER_1994686.pdf | 2023-01-19 | null | DC-0752 | NP |
3,782 | https://www.mspb.gov/decisions/nonprecedential/BOLLIN_ZACHARY_DA_3443_16_0106_I_2_FINAL_ORDER_1994691.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ZACHARY BOLLIN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-3443 -16-0106 -I-2
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Zachary Bollin , San Antonio, Texas, pro se.
Sandra A. Cawley , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellan t has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of materi al fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decisi on were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed by the agency as a Police Officer in
San Antonio, Texas. Bollin v. Department of Veterans Affairs , MSPB Docket
No. DA-3443 -16-0106 -I-1, Initial Appeal File (IAF), Tab 6 at 40. On July 18,
2014, the agency issued a decision removing the appellant from his position based
on charges of failure to follow a direct order and failure to f ollow supervisory
instruction, effective July 24, 2014. Id. at 8-11. Prior to the effective date of the
removal , the parties entered into a last chance settlement agreement. Id. at 12 -15.
Under the terms of the agreement , the agency agreed to hold the removal action in
abeyance for a 2 -year per iod, beginning on July 24, 2014, and purge the removal
and agreement from the appellant’s agency file upon completion of the 2 -year
period. Id. at 14. In exchange, the appellant served a 14-day suspension and
agreed that, should he “engage[] in any substantiated misconduct” or violate any
other term of the agreement within the 2-year period , then the agency would
reinstate the removal action and immediately remove him from his position. Id.
at 12 -13. The agreement also provided that the appellant waived any right to
appeal the removal to the Board. Id. at 13.
3
¶3 On October 9, 2015, the agency issued the appellant a removal notice for
violating the last chance settlement agreement, effective upon his receipt of the
notice . Id. at 28 -29. The agency informed the appellant that he had violated the
agreement because, during his tour of duty spanning September 2 and 3, 2015, he
was 20 minutes late in departing for firearms training and stopped at a
McDonald’ s drive -thru to purchase food on the way to the training, which
constituted an unreasonable delay in carrying out instruction s and an
unauthorized use of a G overnment vehicle. Id. at 28. The appellant received the
removal notice on October 13, 2015. IAF, Tab 1 at 4.
¶4 On November 29, 2015, t he appellant filed a Board appeal alleging that, in
effecting his removal, the agency committed harmful procedural errors and
prohibited personnel practices, and retaliated against him for filing a previous
appeal, com plaints, and grievances. Id. After affording the appellant his
requested hearing, the administrative judge issued an initial decision that
dismissed the appeal for lack of jurisdiction . Bollin v. Department of Veterans
Affairs , MSP B Docket No. DA-3443 -16-0106 -I-2, Refiled Appeal File ( RAF),
Tab 25, Initial Decision (ID). Specifically, the administrative judge found that
the appellant breached the agreement by engaging in su bstantiated misconduct,
and he voluntarily waived the right to appeal his removal to the Board ; thus the
Board lacked jurisdiction over the appeal . ID at 11 -12.
¶5 The appellant has filed a petition for review challenging the initial decision.
Bollin v. Department of Veterans Affairs , MSP B Docket No. DA-3443-16-
0106 -I-2, Petition for Review (PFR) File, Tab 1. The agency has not filed a
response. As set forth below, we find the appellant’s arguments to be without
merit.2
2 The initial appeal appears to be untimely, but we do not reach this issue because we
agree with the administrative judge that the Board lacks jurisdiction over this matter
and affirm the dismissal of the appeal for lack of jurisdiction.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board lacks jurisdiction over an action taken pu rsuant to a last chance
settlement agreement in which an appellant waives his right to appeal to the
Board. Rhett v. U.S. Postal Service , 113 M.S.P.R. 178 , ¶ 13 (2010). To establish
that a waiver of appeal rights in a last chance settlement agreement should not be
enforced, an appellant must show one of the following: (1) he complied with the
agreement ; (2) the agency materially breached the agreement or acted in bad
faith; (3) he did not voluntarily enter into the agreement ; or (4) the agreement
resulted from fraud or mutual mistake. Id. If an appellant raises a nonfrivolous
factual issue of compliance with a settlement agreement, the Board must resolve
that issue before addressing the scope and applicability of a waiver of appeal
rights in the agreement. Id.
¶7 On review, the appe llant challenges the credibility findings tha t the
administrative judge made in concluding that he did not show that he was in
compliance with the last chance settlement agreement ; in particular, he argues
that the administrative judge failed to consider that the police officer that
investigated his misconduct was not credible because he conducted the
investigation during a period in which his police duties were suspended. PFR
File, Tab 1 at 2 -3. The Board must defer to an administrative judge’s credibility
determinations when they are based, e xplic itly or implicitly, on observing the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. C ir. 2002). Although the Board may decline to defer
to an administrative judge’s credibility findings that are abbreviated, based on
improper considerations, or unsupported by the record, Redschlag v. Department
of the Army , 89 M.S.P.R. 589 , ¶ 13 (2001) , it may not overturn an administrative
judge’s demeanor -based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372
(Fed. Cir. 2016). In making credibility findings regarding the testimony of each
witness, the administrative judge discussed the pertinent factors set forth in
5
Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987).3 Although the
administrative judge did not explicitly mention the investigator’s suspension of
duties , her failure to mention all of the evidence of record does not mean that she
did not consider it in reaching her decision. Marques v. Department of Health &
Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir.
1985) (Table). Here, the administrative judge set forth her reasoning as to why
she found the appellant’s version of events incredible and the testimony of other
police officers, including the investigator, to be credible, and her findings ar e
supported by the record. ID at 9-11. Moreover, the appellant has not indicated
how the investigator’s suspension of duties affected the outcome of the
investigation or his appeal . Accordingly, we discern no reason to disturb the
administrative judge’s findings.
¶8 The appellant also argues that the admini strative judge improperly denied
the admission of an e -mail into the record , which the appellant alleges proves that
the investigator did not complete a thorough investigation , and improperly denied
one of his witnesses. PFR File, Tab 1 at 3, 5. During the proceedings below, the
appellant did not seek to admit any documents into evidence that were not already
contained in the record.4 Additionally, the record reflects that the administrative
3 In Hillen , the Board found that t o resolve credibility issues, an administrative judge
must identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version she believes, and explain in detail why she found the
chosen version more credible, considering such factors as: (1) the witness’s
opportunity and capacity to observe the event or act in question; (2) the witness’s
character; (3) any prior inconsistent statement by the witness; ( 4) a witness’s bias, or
lack of bias; (5) the contradiction of the witness’s version of events by other evidence
or its consistency with other evidence; (6) the inherent probability of the witness’s
version of events; and (7) the witness’s demeanor. Hille n, 35 M.S.P.R. at 458.
4 During the hearing, the appellant’s representative showed the investigator a document
for impeachment purposes, which may have been the e -mail to which the appellant
refers, but he did not seek to have the document admitted into evidence. RAF, Tab 24,
Hearing Compact Disc (testimony of the investigator).
6
judge approved each party’s requested witnesses to testify, and the appellant did
not request that the witness in question be permitted to testify. IAF, Tab 11 at 2.
¶9 Finally, the appellant renews arguments he made below, including that his
body had a nega tive reaction to a food he consumed before entering on duty the
night of the firearms training , McDonald’s was all that was available to him to
stop for food en route to training , other staff also had stopped for food on duty,
and his delay did not affect the trai ning. PFR File, Tab 1 at 4 -7. Upon review ing
the record and the administrative judge’s findings, we agree, for the reasons
stated in t he initial decision , that the appellant failed to establish that he did not
commit the alleged misc onduct.5 To the extent the exhibits the appellant
submitted on review are not in the record, he has not shown that they were
unavailable, despite his due diligence, before the record closed, and we decline to
consider them. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980)
(providing that 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). Accordingly, we affirm the initial decision dismissi ng the appeal for
lack of jurisdiction .
5 The appellant’s renewed arguments are not relevant to whether he committed
substantiated misconduct and was thus not in compliance with the last chance
settlement agreement. In an ordinary action brought under Title 5 of the United States
Code, chapter 75 , the appellant’s arguments could be considered as mitigating factors to
the removal penalty; however, here, the appellant waived his right to contest the penalty
of removal before the Board. IAF, Tab 6 at 13; see Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 (1981) ( articulating a non exhaustive list of factors
to be considered when evaluating the penalty to be imposed for an act of misconduct,
including mitigating factors surrounding the offense). Moreover, there is no indication
that the agency acted in bad faith or otherwise took an arbitrary or capricious action in
removing the appellant , particularly because he did not provide evidence of a medical
condition or illness, or that such illness resulted in th e misconduct at issue . Cf. May v.
U.S. Postal Service , 50 M.S.P.R. 654 , 659 (1991) (finding that the record presented a
legitimate factual is sue of whether the appellant breached the terms of the settlement
agreement when he argued that the agency removed him in bad faith because his illness
was an unforeseen circumstance, and the agency approved his leave requests).
7
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of t he initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your 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
9
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
10
disposition of al legations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals f or the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U. S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Pla ce, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellan ts,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://ww w.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repr esentation in a given case.
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 t o file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactiv e to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BOLLIN_ZACHARY_DA_3443_16_0106_I_2_FINAL_ORDER_1994691.pdf | 2023-01-19 | null | DA-3443 | NP |
3,783 | https://www.mspb.gov/decisions/nonprecedential/MCDERMOTT_LANCE_SF_0752_13_0633_B_1_FINAL_ORDER_1994707.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LANCE MCDERMOTT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -13-0633 -B-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lance McDermott , Seattle, Washington, pro se.
Steven B. Schwartzman , Esquire, Seattle, Washington, 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 remand initial decision,
which affirmed h is placement on enforced leave . For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201. 114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 the instant appeal, challenging his May 2013 placement
on enforced leave from his Maintenance Mechanic position. McDermott v. U.S.
Postal Service , MSPB Docket No. SF -0752 -13-0633 -I-1, Initial Appeal File
(IAF), Tab 2. In short, the agency proposed that action because the appellant’s
position required the ability to distinguish colors and the agency was “unable to
determine that [he could] work safely due to [his] color blindness and re peated
attempt [s] to engage [him had] been unsuccessful.” IAF, Tab 21 at 20 -21. After
holding the requested hearing, the administrative judge modified the start date of
the enforced leave to account for the proper amount of advance notice, but
otherwise affirmed the action. IAF, Tab 52, Initial Decision.
¶3 The appellant filed a petition for review of the initial decision. McDermott
v. U.S. Postal Service , MSPB Docket No. SF -0752 -13-0633 -I-1, Petition for
Review (PFR) File, Tab 1. The Board granted the p etition, vacated the initial
decision, and remanded the case for further adjudication. McDermott v. U.S.
Postal Service , MSPB Docket No. SF -0752 -13-0633 -I-1, Remand Order (RO)
(Oct. 13, 2015).
¶4 In the remand order, the Board found that the administrative judge failed to
address the appellant’s affirmative defense of reprisal for engaging in protected
union activity. RO, ¶¶ 11 -14. The Board also found that the administrative judge
should reconsider the appellant’s affirmative defense of equal employment
opportunity (EEO) reprisal under the clarified standard provided in Savage v.
Department of the Army , 122 M.S.P.R. 612 (2015). RO, ¶¶ 15-17. The Board
otherwise agreed with the administrative judge’s findings. Accordingly, the
Board instructed the administrative judge to further develop and address (1) the
appellant’s affirmative defense of reprisal for engaging in protected union
activity, and (2) his EEO reprisal affirmative defense. RO, ¶ 34. The Board
explained that if the appellant did not prevail on either of those affirmative
defenses, the administrative judge could adopt her prior findings concerning the
3
charge, nexus, pen alty, and other affirmative defenses in her remand initial
decision. Id.
¶5 On remand, the administrative judge developed the re cord and held another
hearing . E.g., McDermott v. U.S. Postal Service , MSPB Docket No. SF -0752 -13-
0633 -B-1, Remand File (RF), Tab s 34 -35. She then issued a remand initial
decision, denying the two affirmative defenses identified in the Board’s remand
order and adopting all other findings from her initial decision. RF, Tab 36,
Remand Initial Decision (RID). As explained within, that decision was set to
become final on March 18, 2016, unless the appellant filed a petition for review
by that date. RID at 18. On March 16, 2017, the appellant filed a petition for
review. McD ermott v. U.S. Postal Service , MSPB Docket No. SF -0752 -13-0633 -
B-1, Remand Petition for Review (RPFR) File, Tabs 1 -3. The agency has filed a
response, noting that the appellant’s petition was untimely by nearly a year.
RPFR File, Tab 5. The appellant ha s replied and filed a motion to waive his
untimeliness. RPFR File, Tabs 6 -7.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appel lant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201. 114(e). H ere, the appellant has not alleged or established that he received
the remand initial decision more than 5 days after its issuance. Compare RF,
Tab 37 (demonstrating that the remand initial decision was transmitted to the
appellant electronically on Febru ary 12, 2016), with 5 C.F.R. § 1201.14 (m)(2)
(recognizing that MSPB documents served electronically on registered e -filers are
deemed received on the date of electronic submission ). Thus , we find that the
appellant’s petition for review was untimely filed by nearly a year.
4
¶7 The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 5 C.F.R. § 1201. 114(g). To establish good cause for
an untimely filing, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. 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
reasonablene ss of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casual ty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶8 On review, t he appellant attributes his untimeliness to “the [a]gency’s
substantial fraud and dishonesty,” which he claims he only recently discovered.
RPFR File, Tab 7 at 4 -10. It appears that this alleged fraud concerns an EEO
complaint he filed and his election of remedies. Id. at 9. We find the appellant’s
arguments, which generally amount to regret that he challenged his enforced
leave before the Board, unavail ing. Although he is pro se, the appellant’s
untimeliness of nearly a year is significant and his explanation for that delay is
not persuasive. See, e.g. , Zamot v. U.S. Postal Service , 91 M.S.P.R. 475, ¶¶ 6 -7
(2002) (dismissing a pro se appellant’s petition as untimely by nearly a year
without good cause whe n he attributed the delay to his waiting for a decision b y
the Equal Employment Opportunity Commission), aff’d , 332 F.3d 1374 (Fed.
Cir. 2003); Oliveras v. U.S. Postal Service , 64 M.S.P.R. 74, 76 (1994)
(dismissing a pro se appellant’s petition for review as untimely by nearly a year
without good cause whe n he alleged that the delay was caused by the agency
withholding pertinent documents).
5
¶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 remand initial dec ision remains the final decision
of the Board regarding the appellant’s enforced leave .
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, t he nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available a ppeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within thei r
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result i n the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals f or the Federal Circuit, which must be 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.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlaw ful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), with in 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of pre payment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
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 | MCDERMOTT_LANCE_SF_0752_13_0633_B_1_FINAL_ORDER_1994707.pdf | 2023-01-19 | null | SF-0752 | NP |
3,784 | https://www.mspb.gov/decisions/nonprecedential/HOSEIN_SHARAZ_DA_3443_17_0409_I_1_FINAL_ORDER_1994758.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARAZ HOSEIN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-3443 -17-0409 -I-1
DATE: January 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharaz Hosein , Norwalk, Connecticut, pro se.
Diane M. Galiano , Esquire, 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
dismissed for lack of jurisdiction his appeal of the agency’s alleged breach of an
employment contract which left him stranded in an airport when he reported for a
job. On pet ition for review, the appellant alleges various acts of wrongdoing by
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the agency and an individual identified as “That Lady .” Petition for Review
(PFR) File, Tab 1 at 2 -3.2 In support of his claim that he was stran ded at the
airport, he submits for the first tim e on review documentation of his flight to
Texas without a sho wing that this information is based on new and material
evidence not previously available despite his due diligence . Banks v. Department
of the Air Force , 4 M.S.P.R. 268 , 271 (1980); 5 C.F.R. § 1201.115 (d); PFR File,
Tab 1 at 5 -8. We need not consider this document on that basis. 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 ev idence 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
2 On March 26, 2019, the appellant filed what he titled a “request to dismiss the Petition
for Review.” PFR File, Tab 10. To determine whether the appellant was seeking to
withdraw his petition and that the request was knowing and voluntary, the Acting Clerk
of the Board ordered the appellant to submit a pleading confirming that his request to
withdraw was voluntary and that he understood the withdrawal was with prejudice to
refiling with the Board. PFR File, Tab 11 at 1 -2. The appellant failed to respond to the
order, and the Acting Clerk of the Board issued a second order informing the appellant
that if he did not file a pleading confirming his intent, the Acting Clerk of the Board
would not act on his request to w ithdraw the petition for review and the Board would,
instead, issue a decision following the restoration of a Board quorum. PFR File, Tab 13
at 1-2. The appellant did not respond to the second order, and the Acting Clerk of the
Board r eturned the petition for review to the Board for consideration. PFR File,
Tab 15.
3
AFFIRM the initial decision, which is now the Boar d’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 repres ent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits an d requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a fi nal Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 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
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including 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 t his case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
5
discrimination based on r ace, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locato r/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of app eals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOSEIN_SHARAZ_DA_3443_17_0409_I_1_FINAL_ORDER_1994758.pdf | 2023-01-19 | null | DA-3443 | NP |
3,785 | https://www.mspb.gov/decisions/nonprecedential/KINLOCKE_KEISHA_AT_0714_21_0570_I_1_REMAND_ORDER_1994796.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEISHA KINLOCKE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -21-0570 -I-1
DATE: January 19, 2023
THIS ORDER IS NONPRECEDENTIAL1
Keisha Kinlocke , Lithonia, Georgia, pro se.
Torrey Smith , Esquire, Decatur, 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 as untimely filed. For the reasons discussed below, we
GRANT the a ppellant’s petition for review, REVERSE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified 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 acc ordance
with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Effective February 19, 2021, the agency removed the appellant on a charge
of excessive absences, pursuant to 38 U.S.C. § 714. Initial Appeal File (IAF),
Tab 8 at 27, 29 -32. On February 23, 2021, the appellant amended her pending
equal employment opportunity (EEO) complaint to include the effected removal
action. See IAF, Tab 12 at 4 ; Petition f or Review File, Tab 1 at 13 -14.
¶3 The appellant filed the instant Board appeal on August 10, 2021 . IA F,
Tab 1. At that time, more than 120 days had passed since the appellant amended
her EEO complaint without the issuance of a final agency decision. The
administrative judge dismissed th e appeal, finding that it was untimely filed
under 38 U.S.C. § 714(c)(4)(B), which provides that an appeal of a removal,
demotion, or suspension under § 714 “may only be made if such appeal is made
not later than 10 business days after the date of such removal, demotion, or
suspension.”
¶4 While the appellant’s petition for review was pending, the Board issued its
decision in Wilson v. Department of Veterans Affairs , 2022 MSPB 7 . The Board
held in Wilson that when, as in this case, an individual covered by 38 U.S.C.
§ 714 files a mixed -case appeal after filing a formal complaint with the agency,
the appeal is governed by the procedures set forth in 5 U.S.C. § 7702 and the
Board’s implementing regulations . Wilson , 2022 MSPB 7 , ¶¶ 15-19, 25. As
relevant here, 5 U.S.C. § 7702 provides that if an appellant elects to file a
mixed -case EEO complaint, and the agency fails to issue a final decision on the
complaint within 120 da ys, the employee’s right to file a Board appeal vests and
she may appeal to the Board “at any time” thereafter. 5 U.S.C. § 7702 (a)(2),
(e)(2); see also 5 C.F.R. §§ 1201.151 (a)(1), 1201. 154(b)(2). The appellant’s
Board appeal was therefore timely filed, as more than 120 days had passed since
3
she amended her formal EEO complaint to include the removal claim, and the
agency had not issued a final decision on her complaint. See Wilson ,
2022 MSPB 7, ¶¶ 4-5, 25. Accordingly, we reverse the initial decision and
remand the case for further adjudication.
ORDER
¶5 For the reasons discussed abo ve, we remand this case to the regional office
for furthe r adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KINLOCKE_KEISHA_AT_0714_21_0570_I_1_REMAND_ORDER_1994796.pdf | 2023-01-19 | null | AT-0714 | NP |
3,786 | https://www.mspb.gov/decisions/nonprecedential/BALLANCE_TAMMY_R_DC_3443_17_0476_I_1_FINAL_ORDER_1993946.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAMMY R. BALLANCE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-3443 -17-0476 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tammy R. Ballance , Zebulon, North Carolina, pro se.
Erika F. Campbell -Harris , Esquire, Atlanta, 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
dismissed her appeal regarding being the victim of alleged harassment by her
supervisor for lack of jurisdiction. Generally, we grant petitions such as this one
only in th e 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the admin istrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 For the first time on review , the appellant raises the vague argument s that
her supervisor caused her to be considere d absent without leave and tried to force
her to leave her position . Peti tion for Review File, Tab 1 at 2. Generally, the
Board will decline to consider an argument raised for the first time on review
absent a showing that the argument is based on new an d material evidence not
previously available despite the petitioner’s due diligence. Hodges v. Office of
Personnel Management , 101 M.S.P.R. 212 , ¶ 7 (2006); 5 C.F.R. § 1201.115 (d).
Because the appellant has failed to make any such showing here , we decline to
consider her argument s.
NOTICE OF APPEAL RIG HTS2
You ma y obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 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.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BALLANCE_TAMMY_R_DC_3443_17_0476_I_1_FINAL_ORDER_1993946.pdf | 2023-01-18 | null | DC-3443 | NP |
3,787 | https://www.mspb.gov/decisions/nonprecedential/BROOKINS_KARL_DE_3443_18_0140_I_1_FINAL_ORDER_1993987.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KARL BROOKINS,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-3443 -18-0140 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karl Brookins , Honolulu, Hawaii , pro se.
Deborah E. Yim , Esquire, Lakewood, Colorado, 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 appeal of his placement on a performance improvement plan (PIP)
for lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 j udge’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 a rgument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was a Fish Biologist with the National Park Service,
Department of the Interior (t he agency).2 Initial Appeal File (IAF), Tab 1 at 1.
On January 11, 2018, the agency informed him via memorandum that he was
being placed on a PIP.3 Id. at 8-11. The PIP memorandum identified two Critical
Elements which the appellant was performing unsa tisfactorily : “Effective
Organization” and “Works Well with Others.”4 Id. at 8-9. For each Critical
2 The appellant has submitted a request to preserve computer files . Petition fo r Review
(PFR) File, Tab 4 at 4. Because he has not alleged or shown that the computer files
contain information relevant to the jurisdictional issue in this case, we deny his Request
for Ord er to Preserve Computer Files. See 5 C.F.R. § 1201.72 (a).
3 The memorandum here called it a “Performance Improvement Period,” but for
purposes of our analysis and the effect on the appellant, it was equival ent to a PIP.
IAF, Tab 1 at 8. Similarly, the appellant objected to the characterization of his matter
as a PIP, but as the administrative judge correctly found, it is in fact a PIP and the
appellant has not identified any substantive distinction between a PIP and the language
used by the agency. IAF, Tab 4 at 3; Tab 9, Initial Decision (ID) at 3.
4 The agency also denied the appellant’s within -grade increase (WIGI). The appellant
appealed both the denial of his WIGI and his subsequent performance -based removal.
Brookins v. Department of the Interior , MSPB Docket Nos. DE-531D -18-0028 -I-1,
3
Element , the PIP further identified three subcomponents which must be
performed in order to be minimally successful. Id. For Critical Element 1,
“Effect ive Organization,” the appellant was informed that he had failed to
complete subcomponent 2, which required him to “develop and submit at least
one panel reviewed proposal for funding from outside of WRD [Water Resources
Division] for projects providing ad ditional services to parks.” Id. at 9-10. For
Critical Element 2, “Works Well with Others,” the appellant was informed that he
had failed to complete subcomponent 3, which required him to develop “at least
one approved interagency program initiative that supports goals of the NPS
[National Park Servi ce], NRSS [Natural Resource Stewardship and Science
Directorate] , and WRD.” Id. For each of these shortcomings, he was informed of
what he needed to do to raise his performance to the minimally successful
standard. Id. at 10 -11.
¶3 On January 29, 2018, the appellant filed an appeal with the Board. Id.
at 1-5. He alleged that, by issuing the PIP, the agency committed prohibited
personnel practices (PPPs) outlined in 5 U. S.C. § 2302 because the PIP
“a) significantly increased [his] duties, responsibil ities or working conditions;
b) concerns education or training expected to lea d to performance evaluation;
c) conc erns pay and benefits; and d) likely qualifies as a corrective action.” Id.
at 5. Furthermore, he alleged that the PIP violated 5 U.S.C. §§ 4302 , 4303, 4304,
4305, and 5 U.S.C. § 2301 (c), alo ng with 5 C.F.R. §§ 430 and 432 and the
agency’s policies and guidance pertaining to performance appraisal systems. Id.
Finally, the appellant alleged the PIP , in violation of the aforementioned laws and
regulations, implements or directly concerns merit systems principles set forth in
5 U.S.C. § 2301 (b)(2), (4), (5), and (6). Id.
DE-0432 -18-0359 -I-1. The Board issued a decision in MSPB Docket No. DE -531D -18-
0028 -I-1 on January 10, 2023. The appellant’s petition for review in MSPB Docket
No. DE-0432 -18-0359 -I-1 is pending and will be resolved in a separate decision.
4
¶4 In response to an Acknowledgment Order, the appellant included more
arguments o n jurisdiction. IAF, Tab 5 at 3. In addition to reiterating his
arguments from the initial appeal, he added that the PIP imposes two work
assignments and weekly reporting requirements above and beyond his position
responsibilities. Id. He also argued that he is a Federal employee in the
competitive service who has completed the required probationary period, t hus
satisfying jurisdictional requirements for the Board. Id. Citin g the Board’s
website, he argued that the Board has appellate jurisdiction when an employee
alleges a PPP other than discrimination, and that the Board has original
jurisdiction to review the implementation of Office of Personnel Management
(OPM ) regulations by the agency.5 Id. As outlined in the agency’s collective
bargaining agreement (CBA), he argue d that an employee may raise a PPP or
violations of regulations implementing or directl y concerning merit system
principles under a “statutory procedure.” Id. Finally, he cite d 5 U.S.C. § 7121
for numerous arguments of jurisdiction; he argue d that under section 7121(g), an
employee may elect an appeal of a PPP to the Board; he also argue d that under
section 7121(e), an employee cover ed under 5 U.S.C. § 4303 may raise matters
before the Board; and under section 7121(a), he ar gued that he can elect an appeal
to the Board based on PPPs as part of a CBA. Id. at 4.
¶5 On March 7, 2018, the administrative judge issued a n initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID),
at 1. The administrative judge noted that generally the Board lacks jurisdiction
over PIPs when they are not associated with a loss of grade or pay. ID at 3. He
further noted that the appellant had not alleged any of the four exceptions to this
general rule. Id. Moreover, the administrative judge correctly recognized that,
despite the appellant’s allegations that the agency committed PPPs, such
5 The appellant’s claim of Board jurisdiction to review an agency’s implementation of
an OPM regulation has been docketed in a separate matter. His regulation review claim
is docketed at MSPB Docket No. CB -1205 -18-0021 -U-1.
5
violations are not independent sources of Board jurisdiction. ID at 4. Finally, the
administrative judge addressed the appellant’s references to various statutes and
regulations , finding that either they only apply to an employee who has been
removed or reduced in grade, which had not happened to the appellant, or that
they did not confer Board jurisdiction independen tly. Id. As such, the
administrative judge found that the appellant failed to make a nonfrivolous
allegation of jurisdiction and dismissed the appeal without a hearing. ID at 4 -5.
¶6 The appellant has filed a petition for review, and the agency has respo nded.
Petition for Review (PFR) File, Tab s 1, 3. In addition to raising several of the
arguments made before the administrative judge, the appellant articulates several
additional arguments on review. In this regard, h e argues that the administrative
judge incorrectly adopted the agency’s use of the term “critical element” when
discussing work assignments of such importance that unacceptable performance
on any one would result in a determination that the employee’s overall
performance is unacceptable. P FR File, Tab 1 at 6 -7. By misusing the term, he
argues that the agency imposed six cri tical elements, as defined by 5 C.F.R.
§ 430.203 , in violation of the agency’s OPM -approved performa nce appraisal
policies, which specify that no more than five critical elements can apply to an
employee’s performance standards. Id. This argument, albeit worded differently,
is substantively the same as his argument raised below that the PIP imposed mor e
work assignments of critical importance than allowed. IAF, Tab 5 at 3. He
further argues that several of the restrictions and effects of the PIP were
improper, such as that he was not given an opportunity to demonst rate acceptable
performance and not p rovided a mandated offer of assistance to impro ve his
unacceptable performance. PFR File, Tab 1 at 10. He also argues that the PIP
should operate the same as a reduction in grade or removal, as it is an activity
“directly linked” to the reduction in grad e and removal of employees. Id. at 9-10.
Finally, he argues that the administrative judge failed to discredit some of his
jurisdictional arguments. Id. at 8-9.
6
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. LeMaster v. Department of
Veterans Affairs , 123 M.S.P.R. 453 , ¶ 7 (2016). Although the appellant may be
an employee under 5 U.S.C. § 7511 , he was not subjected , for the purpose of this
appeal, to an y of the specific personnel actions covered by that chapter and thus it
cannot form the basis of Board jurisdiction, regardless of whether he has
completed any probationary period . See 5 U.S.C. § 7512 . The Board generally
lacks jurisdiction over appeals from performance appraisal ratings and placements
on PIPs. Bambl v. Department of the Treasury , 113 M.S.P.R. 55 , ¶ 9 (2010) ;
Shaishaa v. Department of the Army , 58 M.S.P.R. 450 , 454 (1992 ). Therefore,
the appellant ’s placement on a PIP cannot alone be the grounds for Board
jurisdiction and is not an otherwise appealable action.
¶8 The administrative judge addressed several of the appellant’s arguments
below, including his reliance on chapter 43 statu tes, regulations at 5 C.F.R.
§§ 430 and 432, his argument that the agency committed PPPs, and that the
alleged violations the appellant cited implemented merit system prin ciples. ID
at 2-4. We find no error to disrupt or further address t hose findings. However,
the appellant raised other arguments below that were not addresse d by the
administrative judge. Because we find these arguments unpersuasive, the
administrative judge’s failure to address them was harmless error. See Johnson v.
Department of Justice , 104 M.S.P.R. 624 , ¶ 31 (2007).
¶9 The app ellant contended below, and rearticulated on review, that the agency
improperly imposed six critical elements on his performance evaluation, which is
contrary to agency guidance allotting for a maximum of five crit ical elements.
IAF, Tab 5 at 3; PFR File, Tab 1 at 6 -7. However, the appellant conflates the
critical elements placed on his performance evaluation with the subelements of
each critical element. In actuality, the two critical elements which the appellant
failed each have three subelements requi red to minimally sat isfy the critical
7
element: the three subelements of the two failed critical elements combined led
the appellant to incorrectly argue that he was subjected to six critical elements.
See IAF, Tab 1 at 8-9. The Board has long held that a critical element may
include subelements and that the incumbent of a position for which a compound
standard has been established may be required to perform acceptably with respect
to each of those subelements. Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533 , ¶ 31 (2010) (finding that the measures, metrics, and focus
areas listed under various critical elements are not distinct cr itical elements
themselves, but rather, are subelements of a single responsibility). The appellant
further challenges numerous requirements and the effects of his placement on the
PIP, both in the work requirements it imposed on him and the manner in which
the agency implemented it , and claims that the PIP was “imposed as a corrective
action .” IAF, Tab 5 at 3; PFR File, Tab 1 at 6 -8, 10. However, none of these
arguments regarding the PIP and its effects gives the Board jurisdiction over the
matter. See Shaishaa , 58 M.S.P.R. at 454 (finding an appellant’s placement on a
PIP alone is not appealable to the Board). In the absence of an otherwise
appealable action, the appellant has not shown that the Board has jurisdiction to
address the requirements the agency imposed on him as part of the PIP.
¶10 The appellant made several argu ments below in connection with his and the
agency’s CBA. IAF, Tab 5 at 3 -10. E ven if the applicable CBA stated that the
appellant could appeal certain matters to the Board, an agency and a CBA cannot
confer jurisdiction on the Board in that manner absent a statutory right to do so .
See Morales v. Social Security Administration , 108 M.S.P.R. 583 , ¶ 5 (2008)
(finding that the mere fact that an agency informed an appellant that she may
have a right of appeal to the Board does not conf er jurisdiction on the Board).
His reliance on 5 U.S.C. § 7121 (a), (e), and (g) is similarly misplaced, and does
not provide Board jurisdiction over the appeal . Section 7121(a) does nothing
more than state that the CBA is the exclusive procedure for settling grievances,
save for three exceptions, and in no way provides the Board with jurisdiction over
8
this appeal . 5 U.S.C. § 7121 (a). Likewise, section 7121(e) is not itself a source
of Board jurisdiction ; it governs the election of remedies for agency actions that
are both appealable under 5 U.S.C. chapter 43 or chapter 75 (or similar
provisions) and covered under a negotiated grievance procedure . Finally,
section 7121(g) does not conf er Board jurisdiction here when , despite the
appellant’s allegation of a PPP, the underlying personnel action is not an
otherwise appealable action. See Corthell v. Department of Homeland Security ,
123 M.S.P.R . 417 , ¶ 15 (2016).
¶11 The appellant also raises jurisdictional arguments on review that he did not
raise below. His arguments that in implementing the PIP the agency did not
provide him with an opportunity to demonstrate acceptable performance or a
mandate d offer of assistance to improve are both challenges to the PIP and its
effects and cannot estab lish Board jurisdiction alone. Shaishaa , 58 M.S.P.R.
at 454. Finally, the appellant’s argument that PIPs should be treated the same as
reductions in grade or removals because they are directly linked to those
personnel actions is incorrect . While PIPs may ultimately lead to a reduction in
grade or removal, without that actually happening, the Board does not have
jurisdiction over the matter. Bambl , 113 M.S.P.R. 55 , ¶ 9.
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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 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
11
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
7 The o riginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, per manently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circ uit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of App eals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the cour t’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal C ircuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney n or warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | BROOKINS_KARL_DE_3443_18_0140_I_1_FINAL_ORDER_1993987.pdf | 2023-01-18 | null | DE-3443 | NP |
3,788 | https://www.mspb.gov/decisions/nonprecedential/ATWELL_JAMES_DA_0731_17_0215_I_1_FINAL_ORDER_1993998.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES ATWELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0731 -17-0215 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Atwell , San ta Clarita, California, pro se.
Darlene M. Carr , 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 h as filed a petition for review of the initial decision, which
affirmed the suitability determination and associated actions of the Office of
Personnel Management (OPM) . On petition for review, the appellant argues that
OPM’s employment forms are contradictory , as one form allows applicants
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
returning from a combat zone to respond untruthfully to a specific question, and
therefore the requirement that he respond truthfully on other forms constitutes
discriminat ion against applicants who have sought combat -related treatment for
psychiatric issues .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 ba sed 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 require d 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
establish ed 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 failed to raise this specific argument below when asserting that OPM
discriminated against him, and he has made no showing that this argument is based on
new and material evidence not previously availa ble despite his due diligence. Thus, we
need not address it for a first time on review. Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 ( 1980). Nonetheless, even if we were to address this argument, the
record reflects that the form the appellant claims allows an untruthful response , the
Standard Form 86 (SF-86), is inapplicable here , as the appellant was not required to
complete this form in applying for his position. Moreover, like the forms that were
completed by the appellant in his application and appointment process, the SF -86 also
requires the questions to be answered “complete ly and truthfully” with penalties for
inaccurate or false statements, and it provides space for any necessary explanation for
the answer to the question. See SF-86 (Nov. 2016) ,
https://www.opm.go v/forms/pdf_fill/sf86.pdf (last visited Jan. 18, 2023 ). Thus, the
SF-86 does not allow an applicant to falsify answers on the form.
3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature o f your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal right s, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdict ion. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismi ssal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to r eview your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 inclu ded 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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar d ays
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of com petent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases w ith the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | ATWELL_JAMES_DA_0731_17_0215_I_1_FINAL_ORDER_1993998.pdf | 2023-01-18 | null | DA-0731 | NP |
3,789 | https://www.mspb.gov/decisions/nonprecedential/BYARS_JONI_L_AT_1221_17_0362_W_1_FINAL_ORDER_1994020.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JONI L. BYARS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -17-0362 -W-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joni L. Byars , Greenville, South Carolina, pro se.
Edith W. Lewis , Columbia, 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 individual right of action 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
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
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed with out good cause shown. 5 C.F.R. § 1201.114 (e), (g).
¶2 The petition for review was filed 38 days after the deadline to file .
Although the appellant provides medical documentation with her petition, she
does not explain how her medical condition affected her ability to file on time.
Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 19 (2016). As such, the
appellant has not show n that she exercised due diligence or ordinary prudence
under the particular circumstances of the case and thus has not shown good cause
for the delay in filing. Id., ¶ 13.
¶3 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 individual right of action appeal .
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
4
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:
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 Fed eral Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The 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,” wh ich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb. gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representat ion in a given case.
Contact information for the courts of appeals can be 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 | BYARS_JONI_L_AT_1221_17_0362_W_1_FINAL_ORDER_1994020.pdf | 2023-01-18 | null | AT-1221 | NP |
3,790 | https://www.mspb.gov/decisions/nonprecedential/FOWLKES_DOROTHEA_TWANDA_DC_3443_17_0558_I_1_FINAL_ORDER_1994030.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOROTHEA TWANDA FOWL KES,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DC-3443 -17-0558 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dorothea Twanda Fowlkes , Washington, D.C., pro se.
Chief Employment Law , 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, the
appellant argues that the Board has jurisdiction over her performance appraisal
appeal, the evidence submitted below also supported her within -grade increase
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
(WIGI) appeal, a nd she did not receive the WIGI denial letter from her supervisor
until June 7, 2017 . 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 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 wit h required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 The Board’s jurisdiction attaches to the denial of an appellant’s WIGI only
if the agency affirmed its initial decision on reconsideration, or has unreasonably
refused to act on a request for reconsideration. Hunt v. Department of Veterans
Affairs , 88 M.S.P.R. 365 , ¶ 6 (2001); Priselac v. Department of the Navy ,
77 M.S.P.R. 332 , 335 (1998). The Board lacks jurisdiction over an appeal of the
denial of a WIGI whe n an appellant fail s to timely seek reconsideration of the
denial by the agency i n accordance with the agency’s requirements. Goines v.
Merit Systems Protection Board , 258 F.3d 1289 , 1292 (Fed. Cir. 2001). Pursuant
to 5 C.F.R. § 531.410 (a)(1), an employee must seek reconsideration of a denial of
a WIGI in writing within 15 days of receiving the decision. When an agency
denies a request for reconsideration of the denial of a WIG I because it was not
timely submitted, the Board will review the record before the agency to determine
whether the denial was unreasonable or an abuse of discretion. Priselac ,
77 M.S.P.R. at 336.
¶3 Here, t he appellant has not submitted evidence that she s ought
reconsideration of the agency’s decision to withhold a WIGI , even though the
agency advised her of this requirement . Petition for Review (PFR) File, Tab 1
at 23-24. Instead, she states that she decided not to apply for reconsideration of
3
the denial of her WIGI due to her previous experience applying for
reconsideration of her performance appraisal, which was not in her favor. PFR
File, Tab 4 at 3. Therefore , even if we were to consider the WIGI denial letter
submitted for the first time on review, the Board still would lack jurisdiction over
the appeal because the appellant, by her own admission, has not requested
reconsideration of the WIGI denial.
¶4 After fully considering the filings in this appeal, we conclude that the
petitioner has not establ ished any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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 w hich option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the 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
6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit you r petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
Jenn ifer Everling
Acting Clerk of the Board | FOWLKES_DOROTHEA_TWANDA_DC_3443_17_0558_I_1_FINAL_ORDER_1994030.pdf | 2023-01-18 | null | DC-3443 | NP |
3,791 | https://www.mspb.gov/decisions/nonprecedential/FOWLKES_DOROTHEA_TWANDA_DC_531D_18_0561_I_1_FINAL_ORDER_1994101.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOROTHEA TWANDA FOWL KES,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DC-531D -18-0561 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dorothea Twanda Fowlkes , Annapolis, Maryland, pro se.
Chief Employment Law , 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 this appeal from the denial of a within -grade increase (WIGI) for lack
of jurisdiction. 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 DISMISSE D as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114 (e), (g).
BACKGROUND
¶2 The appellant filed the instant appeal, challenging the denial of her WIGI .
Initial Appeal File ( IAF), Tab 1. On June 27, 2018, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 5, Initial Decision (ID). The initial decision stated it would become final on
August 1, 2018, unless a petition for review was filed by that date. ID at 3.
¶3 The appellant filed a petition for review on August 2, 2018. Petition for
Review (PFR) File, Tab 1 at 2, 29 -30. The agency has filed a response urging , as
relevant here, that the petition for review be dismissed as untimely filed . PFR
File, Tab 4 at 7 -9.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance or, if the appellant shows that the initial decision
was received more than 5 days after the date of issuance, within 30 days after the
date she received the initial deci sion. 5 C.F.R. § 1201.114 (e). The appellant
bears the burden of proof with regard to timeliness, which she must establish by
preponderant evidence . Perry v. Office of Personnel Management , 111 M.S.P.R.
337, ¶ 5 (2009); 5 C.F.R. § 1201.56 (b)(2)(i )(B).
¶5 Here, the administrative judge informed the appellant that the initial
decision had an August 1 , 2018 finality date, unless either party filed a petition
for review by that date. ID at 3. The certificate of service reflects that, on
June 27, 2018, the initial decision was sent by electronic mail to the appellant ,
who was an e -filer. IAF, Tab 1 at 2, Tab 6. The appellant indicates that she
received the initial decision on June 30, 2018. PFR File, Tab 1 at 2. However, as
an e -filer, she is deemed to have received the initial decision on the date of
3
electronic submission, June 27, 2018. ID at 1; Palermo v. Department of the
Navy , 120 M.S.P.R. 694 , ¶ 3 (2014); 5 C.F.R. § 1201.14 (m)(2). Accordingly, she
had until August 1, 2018, the 35th day following the issuance of the June 27,
2018 initial decision, to file a petition for review. ID at 3. The appellant filed
her petition for review by mail, with a postma rk date of August 2, 2018, one day
past the filing deadline. PFR File, Tab 1 at 2, 29-30.
¶6 The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 5 C.F.R. § 1201.114 (g). To establish good cause for
an untimely filing, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of 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 her excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or mi sfortune which similarly shows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d per curiam , 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
¶7 The Office of the Clerk of the Board informed the appellant that her petition
for review was untimely filed and that she could file a motion with the Board to
accept her filing as timely or to waive the time limit for good cause. PFR File,
Tab 2. In the appellant’s respon se, she asserts that her petition fo r review is
untimely due to unspecified technical difficult ies and her family responsibilities
as the sole caregiver of an elderly parent . PFR File, Tab 3 at 2. She details that
caring for her elderly parent has been time-consuming and caused her to be out of
the office. Id.
4
¶8 Although the appellant was untimely only by 1 day , see Coleman v.
Department of the Treasury , 88 M.S.P.R. 266 , ¶ 7 (2001), she must nevertheless
show good cause for the delay in order for the Board to waive the filing deadline,
see Beckley v. U.S. Postal Service , 43 M.S.P.R. 397 , 399 (1990) . The appellant
has not explained how her “ technical difficulties ” contributed to the untimeliness
of her pet ition for review. See Moorman , 68 M.S.P .R. at 63 (finding that the
appellant failed to establish causality between a 1-day illness and stress due to
family problems and his untimeliness) . Thus, her vague statement of
experiencing technical difficulties d oes not establish good cause for the delay in
filing her petition for review. See Kinan v. Department of Defense , 89 M.S.P.R.
407, ¶ 6 (2001) (finding that the appellant’s vague statement that he experienced
“difficulty and hardship” during the filing period did not constitute good cause
for the 5-month filing delay). Furthermore , her allegation of family difficulties ,
caused by caring for her elderly parent , also does not constitute good cause for
waiver of the deadline for filing a petition for review. See Garcia v. Office of
Personnel Management , 85 M.S.P.R. 576 , ¶ 4 ( 2000) (finding that the appellant’s
family difficulties, which were caused by his wife’s illness, did not provide a
basis for a waiver of a filing deadline) , aff’d per curiam , 251 F.3d 170 (Fed. Cir.
2000) (Tabl e).
¶9 In sum, we find that the appellant has not shown good cause for the
untimely filing of her petition for review. See Belcher v. U.S. Postal Service ,
101 M.S.P.R. 58, ¶ 7 (2006) (finding that the appellant failed to show due
diligence, even though he was proceeding pro se and the filing delay of 6 days
was not particularly lengthy). 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 our lack of jurisdiction over the
appellant’ s WIGI denial.
5
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 d etermines the time limit for seeking such
review and the 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 wi sh to seek 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 ca se by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case , you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals f or the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
discrimina tion. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/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
with the EEOC no later than 30 calendar days after your representative 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).
8
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the 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
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.
9
for Merit Systems Protection Board appellants before the 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 | FOWLKES_DOROTHEA_TWANDA_DC_531D_18_0561_I_1_FINAL_ORDER_1994101.pdf | 2023-01-18 | null | DC-531D | NP |
3,792 | https://www.mspb.gov/decisions/nonprecedential/ORR_KEITH_A_SF_0752_16_0273_I_1_FINAL_ORDER_1994130.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEITH A. ORR,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
SF-0752 -16-0273 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lesa L. Donnelly , Anderson, California, for the appellant.
Marcus Mitchell , Albuquerque, New Mexico, f or 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 involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to t he body of MSPB case 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 decisio n issued as an Opinion and Order 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 o n an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required pro cedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established a ny basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review . Except as express ly MODIFIED by this Final Order to vacate the
administrative judge’s findings concerning the merits of the appellant’s
discrimination and retaliation claims and to address such claims only insofar as
they relate to the issue of voluntariness, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was formerly employed by the agency as a Supervisory
Forestry Technician until he resigned, effective May 16 , 2015. Initial Appeal File
(IAF), Tab 14 at 8 . H e filed a Board appeal alleging that his resignation was
involuntary due to intolerable working conditions. IAF, Tab 1 at 4, 6. In
particular, he alleged that beginning i n July 2013, management erroneously
believed that he was unfit for duty following his heart attack and temporarily
reassigned him pending an inquiry regarding his fitness for duty. IAF, Tab 17
at 4. Management also required him to take a physical examina tion and a work
capacity test and issued him a letter of reprimand for failing to timely comply
with these instructions. Id. at 4-5.
¶3 The appellant also alleged that he was subjected to a hostile work
environment when management permanently moved Engine 53’s official duty
station from Big Bend, California to his station (Engine 52) in Redding ,
3
California . Id. at 5. The appellant alleged that Engine 53 was given assignments
that should have been given to Engine 52 and that Engine 5 3 personnel caused
prob lems, engaged in misconduct, and created a hostile work environment for him
and his personnel. Id. at 5 -6. Following an investigation into his reports
regarding the working conditions, on May 16, 2015, he received a letter of
instruction. Id. at 6, 8. Finally, he alleged that from February to March 17, 201 5,
his access to the Engine 52 fire ca che2 was removed . Id. at 7. He contended that
the agency’s actions were due both to discrimination based on its perception of
him as disabled and retaliation. IAF, Tab 1 at 6, Tab 17 at 5.
¶4 The administrative judge determined that the appellant had made
nonfrivolous allegations of an involuntary resignation sufficient to warrant a
hearing. IAF, Tab 19. After holding a hearing, the administrative judge issued
an initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 35,
Initial Decision (ID). She found that the appellant failed to prove by
preponderant evidence that the agency rendered his working conditions so
intolerable that a reasonable p erson would have fel t compelled to resign. ID
at 14. The administrative judge found that the agency’s inquiry into the
appellant’s fitness for duty was motivated by a legitimate concern that a frontline
Engine Captain be suitabl y fit to perform. ID at 8 -10. She also found that the
appellant’s claims that he was marginalized from performing his job duties
because of the presence of Engine 53 at his station, the consolidation of the fire
cache for the entire district, and the March 28, 2015 letter of inst ruction failed to
render his working conditions so intolerable that a reasonable person would have
felt compelled to resign. ID at 12 -14.
2 The fire cache is a supply of fir e tools and equipment. IAF, Tab 1 at 22.
4
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1 -2.3 The agency has opposed the appellant’s petition. PFR File,
Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 An employee -initiated action, such as a re signation or retirement , is
presumed to be volunt ary, and thus outside the Board’ s jurisdiction, unless the
employee presents suffici ent evidence to establish that the action was obtained
through duress or coercion or shows that a reasonable person would have been
misled by the agency. Green v. Department of Veterans Affairs , 112 M.S.P.R. 59 ,
¶ 8 (2009). In cases such as this one, where the employee alleges that the agency
took actions that made working conditions so intolerable that the employee was
driven to an i nvoluntary r esignation , the Board will find an action involuntary
only if the employee demonstrates that the employer engaged in a course of
action that made working conditions so difficult or unpleasant that a rea sonable
person in that employee’ s position would have felt compelled to re sign. Vitale v.
Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 20 (2007). The Board
addresse s allegations of discrimination and reprisal in connection with an alleged
involuntary r esignation only insofar as those allegations relate to the issue of
voluntariness. Id. If an appellant makes nonfrivolous allegations of jurisdiction,
i.e., allegatio ns that, if proven, could establish the Board’s jurisdiction, he is
entitled to a hearing at which he must prove jurisdiction by a preponderance of
the evidence. 5 C.F.R. § 1201.4 (s).
¶7 We agre e with the administrative judge’ s finding that the appellant did not
prove by preponderant evidence that his resignation was involuntary and , thus, an
action within the Board’ s jurisdiction. First, w e agree with the administrative
judge that the ag ency’s inquiry into the appellant’s physical fitness would not
3 On November 11, 2016, the appellant electronically filed two separate pleadings, both
of which are identified as his petition for review. We have considered both pleadings.
5
have caused a reasonable person to resign on May 15, 2015, over a year after
having been reinstated on April 3, 2014, following the inquiry. ID at 10.
¶8 Second, we also agree with the administra tive judge that the appellant’s
claims regarding being subjected to a hostile work environment following
Engine 53’s move into the station fail to establish that his resignation was
involuntary. In a sworn declaration submitted during the agency’s investi gation
of his claims, t he appellant indic ated that the problems involved, among other
things, conflicting management style s and Engine 53 failing to assist with
cleaning, station maint enance and dealing with equipment, and using their
supplies without retu rning them. IAF, Tab 20 at 82 -86.
¶9 The administrative judge found that the appellant had strong negative
feelings about the decision to have Engine 53 at his station, was concerned with
where the Engine 53 em ployees parked their fire truck and how they m aintained
the station, and accused th em of taking Engine 52’s calls and being lazy. ID
at 13. We agree with the administrative judge that such claims fail to amount to a
hostile work environment sufficient to establish that the appellant was compelled
to resign. See, e.g. , Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32
(2000) (explaining that an employee is not guaranteed a working environment
free of stress and that dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions generally are not
so intolerable as to compel a reasonable person to resign).
¶10 We sim ilarly agree with the administrative judge that the appellant’s receipt
of the letter of instruction would not warrant a reasonable person to conclude that
he had no other choice but to resign. ID at 13. Following an investigation into
the working condit ions, the agency issued letters of instruction to the appellant
and several other individuals concerning their behavior. IAF, Tab 11 at 15 -17,
Tab 20 at 10 -14.. We also find that the appellant has failed to establi sh that the
agency subjected him to work ing conditions that would have compelled a
reasonable person to resign even considering the cumulative effect of the
6
allegedly harassing incidents cited by the appellant. See Coufal v. Department of
Justice , 98 M.S.P.R. 31 , ¶ 22 (2004).
¶11 The administrative judge also considered, but rejected, the appellant’s
claims that the agency’s actions were due to disc rimination and retalia tion. ID
at 10-12. She found that the inquiry into the appellant’s physical fitness was not
motivated by discriminatory animus. ID at 10. She also considered the
appellant’ s contention that the agency issued him the letter of instruction and
removed hi s access to the fire cache in retaliation for his filing an equal
employment opportunity (EEO) complaint in 2013 , but found that the appellant
failed to prove such a claim. ID at 10 -12. In particular, she found that
management had little contact with EEO personnel during the processing of the
appellant’s informal complain t and the fact that the agency frequently mentioned
the appellant’s EEO complaint in correspondence was not direct evidence of
retaliation and did not comprise a “convincing mosaic ” of ci rcumstantial
evidence. ID at 10-11.
¶12 On review, the appellant disputes these findings and contends that he was
entitled to rely on circumstantial evidence to prove his claims. PFR File, Tab 2
at 5-10. In an involuntary resignation appeal, however, the Bo ard considers
allegations of discrimination and reprisal only insofar as they relate to the issue
of voluntariness and not whether they would establish discrimination or reprisal
as an affirmative defense . See, e.g. , Pickens v. Social Security Administrat ion,
88 M.S.P.R. 525 , ¶ 6 (2001). To the extent the administrative judge found that
the appellant failed to prove that the agency discriminated against him or
retaliated against him for his prior EEO activity, the Board lacks jurisdiction to
consider s uch claim s in the context of this appeal , and we vacate such findings.
Nonetheless, any error does not provide a basis for reversal because, while the
appellant alleged discrimination and reprisal, he failed to establish that the
working conditions preceding his resignation were so difficult or intolerable that
a reasonable person would have felt th ey had no choice but to retire. See Panter
7
v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that an
adjudicatory error tha t is not prejudicial to a party ’s substantive rights provides
no basis for reversal of an initial decision).
¶13 On review, the appellant reiterates the contentions he raised below. His
mere disagreemen t with the administrative judge’ s findings does establish a basis
for reversal. See, e. g., Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06
(1997) (finding no reason to d isturb the administrative judge’ s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same). Further, despite the appellant’ s arguments
to the contrary, we find that the administrative ju dge did not fail to consider
material evidence or ignore the appellant’ s allegations in making he r decision to
dismiss the appeal for lack of jurisdiction. See Marques v. Department of Health
& Human Services , 22 M.S.P.R. 129 , 132 (1 984) (stating that the administrative
judge’ s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision) , aff’d , 776 F.2d 1062 (Fed. Cir. 1985)
(Table) .
The appellant’s remaining arguments do not provide a basis for reversal.
¶14 On review, the appellant contends generally that the administrative judge
failed to consider that testimony by agency officials contradicted their prior
sworn testimony. PFR File, Tab 1 at 12. However, he fails to identify t he
specific testimony to which he is referring . Thus, t he Board will not embark upon
a complete review of the record to try and address this argument . See Baney v.
Department of Justice , 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v. Department of the
Air Force , 56 M.S. P.R. 90 , 92 (1992); 5 C.F.R. § 1201.115 .
¶15 The appellant also argues that the facts of his case are analogous to those in
Midd leton v. Department of Defense , 185 F. 3d 1374 (Fed . Cir. 1999), in which
the court found that the appellant raised nonfrivolous allegations that his
retirement was involuntary, entitling him to a hearing. PFR File, Tab 1 at 13-14.
8
Here, however, the administrative judge found that the appellant r aised
nonfrivolous allegations and afforded him a hearing, but found he failed to me et
his burden of proving by preponderant evidence that his resignation was
involuntary. Thus, this case is distinguishable from the court’s decision in
Middleton .
¶16 Finally, we find unavailing the appellant’s arguments that the
administrative judge failed to tak e into account his 28 years of F ederal service,
lack of any discipline pr ior to his heart surgery, and lack of performance issues.
PFR File, Tab 2 at 14. Such arguments are not relevant to the issue of whether
the appellant’s working conditions were so intolerable that a reasonable person
would have felt compelled to resign.
¶17 Based on the foregoing, we affirm , as modified, the initial decision
dismissing the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter . 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, t he 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
4 Since the issuance of the initial de cision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to revie w your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federa l Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appe als for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
(2) Judicial or EEOC review of cases involving a claim o f
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial revi ew of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EE OC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to th e Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other prote cted activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibite d personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit o r any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petiti ons for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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 | ORR_KEITH_A_SF_0752_16_0273_I_1_FINAL_ORDER_1994130.pdf | 2023-01-18 | null | SF-0752 | NP |
3,793 | https://www.mspb.gov/decisions/nonprecedential/HOWELL_RICARDO_P_DC_0432_13_6622_I_2_REMAND_ORDER_1994137.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICARDO P. HOWELL,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
DC-0432 -13-6622 -I-2
DATE: January 18, 2023
THIS ORDER IS NONPRECEDENTIAL1
Juliette Niehuss , Esquire, and Jeremy Wright , Esquire, Washington, D.C.,
for the appellant.
Carl E. Hobbs II , Esquire, and Bianca Manns , 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 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for unacceptable performance. For th e reasons
discussed below, we GRANT the agency’s petition for review . We VACATE the
initial decision and REMAND the case to the regional office for further
adjudication consistent with Santos v. National Aeronautics & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021) , and the guidance below .
BACKGROUND
¶2 The appellant held the GS -12 Auditor position with the agency’s Office of
Inspector General, Headquarters Audit Division, Office of Audit. Howell v.
Department of Housing and Urban Development , MSPB Docket No. DC-0432 -13-
6622 -I-1, Initial Appeal File (IAF ), Tab 1 at 2; Howell v. Department of Housing
and Urban Development , MSPB Docket No. DC-0432 -13-6622 -I-2, Appeal File
(I-2 AF), Tab 67, Initial Decision (ID) at 2.2 In July 2012, the agency placed him
on a 120 -day performance improvement plan (PIP). I-2 AF, Tab 12 at 83-101.
The agency later extended the PIP until January 2013, to account for the
appellant’s absence due to a death in his family. Id. at 82. In April 2013, the
agency proposed the appellant’s removal for unacceptable performance. Id.
at 71-81. After the appellant responded, the agency removed him, effective
August 2013. Id. at 12, 14 -18. This appeal followed. IAF, Tab 1.
¶3 The administrative judge held the requested hearing and issued an initial
decision reversing the removal. ID at 1. Because she reversed the appellant’s
removal on other grounds, the administrative judge did not address his harmful
error claim. ID at 23 n.12. She did, however, deny the appellant’s affirmative
defenses of retaliation for engaging in equal employ ment opportunity (EEO)
2 The admin istrative judge initially dismissed this appeal without prejudice pending an
ongoing equal employment opportunity claim, the appellant filed a petition for review
of that dismissal, and the Board forwarded the matter for refiling, resulting in the
separate docket numbers associated with this one matter. ID at 3 n.3.
3
activity and discrimination on the bases of sex, race, national origin, and
disability. ID at 22-34. The agency has filed a petition for review. Howell v.
Department of Housing and Urban Development , MSPB Docket No. DC-0432 -13-
6622-I-2, Petition for Review (PFR) File, Tab 1. The appellant has filed a
response, PFR File, Tab 8, and the agency has replied, PFR File, Tab 11.3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performance -based removal appeal under chapter 43, the agency
must establish the following by substantial evidence: (1) the Office of Personnel
Management (OPM) approved its performance appraisal system and any
significant changes th ereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302 (b)(1); (4) the agency
warned the appellant of the inadequacies of his performance during the appraisal
period and gave him a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more o f the critical elements for which he was provided an opportunity to
demonstrate acceptable performance. Lee v. Environmental Protection Agency ,
3 In addition to the petition for review, response, and reply pleadings, PFR File, Tabs 1,
8, 11, the record includes several additional filings. The appellant filed a separate
motion to dis miss the agency’s petition for review because the agency had not provided
interim relief. PFR File, Tab 5; see generally 5 C.F.R. § 1201.116 (a) (requiring that an
agency’s petition for review generally be accompanied by certification that it has
provided interim relief, if the initial decision ordered interim relief). The agency filed a
response, rightly noting that the administrative judge did not order interim relief. PFR
File, Tab 7; ID at 35-41; see Cole v. Department of the Air Force , 120 M.S.P.R. 640,
¶ 20 n.5 (2014) (denying an appellant’s request to dismiss an agency’s petition for
review for failing to provide interim relief because the administrative judge did not
order interim relief). The appellant then filed a pleading requesting that the Board
order immediate interim relief, PFR File, Tab 9, to which the agency also responded,
PFR File, Tab 13. Because the administrative judge did not order interim relief , his
request for such relief is denied .
4
115 M.S.P.R. 533, ¶ 5 (2010).4 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 disag ree.” 5 C.F.R. § 1201.4 (p).
¶5 The administrative judge found that the agency met its burden for
criteria (1), (2), and (3). ID at 6-11. However, she found that the agency failed
to prov e that it afforded the appellant a reasonable opportunity to improve, as
required by criterion (4), or that the appellant’s performance remained
unacceptable, as required by criterion (5). ID at 12-22. We do not reach any
conclusions as to criteria (4) a nd (5) at this time because we must remand this
appeal for the agency to prove an additional criterion that was not addressed
during the proceedings below.5
Remand is required in light of Santos .
¶6 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 “just ify the institution of the 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 e vents took place. Lee v. Department of Veterans
Affairs , 2022 MSPB 11, ¶ 16. Accordingly, we remand the appeal to give the
parties t he opportunity to present argument and additional evidence on whether
4 Although Lee provides that performance standards must be valid under 5 U.S.C.
§ 4302 (b)(1), the National Defense Authorization Act of 2018 redesignated
subsection 4302(b) as subsection 4302(c). Pub. L. No. 115-91, § 1097(d)(1)(A),
131 Stat. 1283, 1619 (2017). Accordingly, 5 U.S.C. § 4302 (c)(1) now sets forth the
statutory requirements for a valid performance standard.
5 The parties have not disputed the administrative judge’s findings concerning
criteria (1), (2), or (3) . Therefore, we have not addressed them here. See 5 C.F.R.
§ 1201.115 (reflecting that the Board normally will consider only the issues raised by
the parties on review ).
5
the appellant’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements. See id ., ¶¶ 15-17. On remand, the
administrative judge shall acce pt argument and evidence on this issue, and shall
hold a supplemental hearing if appropriate. Id., ¶ 17.
On remand, the administrative judge should further develop the record and revisit
her findings as to whether the agency gave the appellant a reasona ble opportunity
to improve and demonstrate acceptable performance.
¶7 To determine whether an agency has afforded an employee a reasonable
opportunity to improve, relevant factors include the nature of the duties and
responsibilities of the employee’s posit ion, the performance deficiencies
involved, and the amount of time which is sufficient for the employee to
demonstrate acceptable performance. Lee, 115 M.S.P.R. 533, ¶ 32. An agency
may fail to meet these criteria if it does not provide an appellant with the
supervisory assistance prom ised in the PIP. E.g., Thompson v. Department of the
Army , 122 M.S.P.R. 372, ¶¶ 20, 30 (2015); Thompson v. Farm Credit
Admin istration , 51 M.S.P.R. 569, 579 (1991); Adorador v. Department of the
Air Force , 38 M.S.P.R. 461, 464 -66 (1988).
¶8 The administrative judge found below that the agency failed to meet its
burden of proving that it provided a reasonable opportunity to improve, primarily
based on her conclusion that the agency failed to fulfill its self -imposed
obligation to meet with the appellant every 2 weeks. ID at 13-17. The
administrative judge determined that the parties provided contradictory testimony
on this point and she made cr edibility determinations in favor of the appellant’s
version of events. ID at 14-15.
¶9 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testi fying 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) (explaining
6
the deference afforded to an administrative judge’s credibility findings); Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987) (recognizing relevant
factors for assessing credibility). The Board may find sufficiently sound reasons
to o verturn such determinations if they 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). As further explained
below, we find that the administrative judge must revisit her credibility findings
on remand because she did not properly characterize some w itness testimony and
failed to account for evidence corroborating the agency’s version of events. Id.,
¶¶ 11-18 (overturning an administrative judge’s credibility finding regarding a
witness who did nothing when the appellant allegedly sexually harassed h er
because the administrative judge failed to take into account either the witness’s
explanation for her inaction or the corroborating statements of other witnesses).
¶10 The organizational structure of the appellant’s supervisory chain and a
timeline are pa rticularly relevant for analyzing whether the appellant was
provided a reasonable opportunity to improve during the July 2012 to
January 2013 PIP. During the PIP, the appellant was assigned to a Departmental
Enforcement Center (DEC) review project. I-2 AF, Tab 12 at 101. As an Auditor
on the DEC review project, the appellant worked closely with the Auditor in
Charge (AIC) assigned to that project. I-2 AF, Hearing Transcript (HT) at 9-10
(testimony of the AIC), I-2 AF, Tab 55, Hearing Compact Diskette (HCD)
(testimony of the appellant, 7:53, 8:11).6 The AIC testified that her role was not
supervisory, but it did require that she provide first -level approval of the
appellant’s work on the DEC review project and assess his performance. HT
at 14, 50 -52 (testimony of the AIC). She further testified that, as the AIC, she
6 Although the parties provided the Board with transcripts for much of the hearing,
some testimony, including the appellant’s, is not transcribed. Therefore, in some
instances we have cited to the hearing transcript and in others to the hearing
compact diskette.
7
reviewed the appellant’s work at least once or twice a week. Id. at 10-11. The
appellant’s supervisor at the beginning of his PIP was a Deputy Director;
however, she became the Acting Di rector partway through the PIP, around the
August to September 2012 timeframe. An Assistant Director began actively
supervising the appellant around the same Augus t to September 2012 timeframe.
HT at 124, 158 -59 (testimony of the Deputy Director), 308 -11 (testimony of the
Assistant Director).
¶11 The Deputy Director issued the appellant’s PIP. I-2 AF, Tab 12 at 82-83.
Among other things, the PIP indicated that she would be monitoring the
appellant’s performance and she would be supervising the project for which he
was responsible, the appellant was expected to advise her of any significant
developments or problems, and she would meet with him every other week to
discuss his progress. Id. at 83, 100 -01. However, as previously discussed,
organizational cha nges resulted in her taking on a more senior role during the PIP
and the Assistant Director became more active in supervising the appellant. HT
at 124, 158 (testimony of the Deputy Director), 308 -11 (testimony of the
Assistant Director). Nevertheless, th e Deputy Director testified that:
I met with —I think they were like every two weeks. The meetings
were every two weeks to discuss the PIP and where [the appellant]
was in terms of training, whether he needed additional resources,
whether he needed any additional help on the assignment. But . . .
the meetings sometimes would end because [of the
appellant’s behavior].
HT at 160-61 (testimony of the Deputy Director).
¶12 The administrative judge discussed the Deputy Director’s testimony,
generally. While doing so, her analysis included the following:
[The Deputy Director] testified that she met with the appellant and
[the Assistant Director] every 2 weeks during the PIP but that the
meetings ended because of the appellant’s behavior. She did not
indicate in her testimony how many meetings were held or when she
stopped holding the meetings. Nor did she explain what it was about
8
the appellant’s behavior that she found so problematic as to cause
her to stop holding the meetings.
ID at 14. Although the administrative judge seems to have co nstrued the Deputy
Director’s testimony as demonstrating that the meetings completely stopped, we
read the testimony as suggesting that the meetings were held every 2 weeks, but
some were cut short due to the appellant’s behavior. HT at 160-61 (testimony of
the Deputy Director).
¶13 Further, although the administrative judge faults the Deputy Director for not
explaining what it was about the appellant’s behavior that she found so
problematic, the transcript shows that the administrative judge did not permit
testimony on this issue because the appellant was not charged with misconduct.
Id. Administrative judges have broad discretion in regulating the course of the
hearing, but we find that it was an abuse of that discretion to exclude testimony
about the app ellant’s conduct at PIP meetings and then rely, in part, on the
absence of that testimony to find that the agency failed to meet its burden . See
Beck v. Department of the Navy , 997 F.3d 1171 , 1184 -86 (Fed. Cir. 2021)
(finding that administrative judges abused their discretion by preve nting an
appellant from deposi ng witne sses relevant to his case) ; see generally Thomas v.
U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011 ) (explaining that an
administ rative judge has broad discretion to regulate the course of the hearing and
exclude evidence that has not been shown to be relevant or material, but a party
may establish an abuse of that discretion if the disallowed evidence could have
affected the outcom e); Fulton v. Department of the Army , 95 M.S.P.R. 79,
¶¶ 11-16 (2003) (recognizing that although administrative judges have broad
discretion to exclude witnesses if a party has not shown their testimony would be
relevant, material, and nonrep etitious , the administrative judge abused his
discretion by excluding certain witne sses that would have provided
relevant testimony) .
9
¶14 At the hearing, the Assistant Director also described meeting with the
appellant on a regular basis. HT at 337-38, 340 -41 (testimony of the Assistant
Director). The agency asked what kind of meetings he had with the appellant
during the PIP and the Assistant Director responded, “we had informal
meeting[s], and we had progress status – progress meeting[s]. The progress
meeting used to be every two weeks.” HT at 340. The Assistant Director also
stated t hat he talked with the appellant, informally, at least once a week. Id.
at 341. In addition, the Assistant Director’s proposal to remove the appellant
described holding PIP meetings with the appellant and the Deputy Director, and
indicates that some were unproductive because of the appellant’s attitude.
I-2 AF, Tab 12 at 77. Despite this testimony and evidence, the administrative
judge found that the Assistant Director “did not mention any meetings with the
appellant and [the Deputy Director] in his hea ring testimony. That seems
particularly odd if, as [the Deputy Director] asserted, those meetings ceased
because of the appellant’s behavior.” ID at 15.
¶15 The administrative judge found that the appellant testified that the Deputy
Director did not give h im any feedback during the PIP. ID at 14. However, this
overlooks or at least oversimplifies the appellant’s actual testimony.
The appellant did testify that he felt as if he did not receive sufficient feedback
from the Assistant Director for purposes o f improving, and the Deputy Director
“was not involved at all in the PIP.” HCD (testimony of the appellant, 8:01).
However, he later acknowledged having meetings with the Deputy Director in her
office during the PIP period, without indicating how often t hey occurred or
suggesting that they altogether ceased at some point. HCD (testimony of the
appellant, 8:55).
¶16 Aside from the appellant’s testimony on this matter, the appellant’s
response to the proposed removal also included an assertion that the Assis tant
Director “began attending the PIP meetings in mid -October,” which further
evidences the existence of these meetings, generally. I-2 AF, Tab 12 at 41. The
10
administrative judge appears to have overlooked that evidence. ID at 14-15. She
also appears to have overlooked relevant language in the proposal to remove the
appellant. Id. The administrative judge acknowledged one notation about the
Assistant Director and the AIC meeting with the appellant to provide feedback,
finding that it supported a conclusion that the Deputy Director did not participate
in PIP meetings. ID at 15 (citing I-2 AF, Tab 12 at 80). However, she did not
acknowledge other notations in the proposal, which specifically described the
Assistant Director an d the Deputy Director holding PIP progress meetings with
the appellant. I-2 AF, Tab 12 at 72, 77.
¶17 We appreciate the administrative judge’s concern that the agency failed to
present detailed documentary evidence of biweekly PIP meetings. ID at 15-16;
cf. Thompson , 122 M.S.P.R. 372, ¶¶ 20-26 (crediting an appellant’s testimony
that his supervisor provided only 2 of the 21 promi sed meetings during an
improvement period, over testimony from the supervisor to the contrary, in part
because the agency failed to present meeting notes or memoranda). We also
recognize the appellant’s general assertion that he did not receive adequate
feedback. HCD (testimony of the appellant, 8:01). Nevertheless, the substantial
evidence burden of proof is not a high one.7 See, e.g. , Towne v. Department of
the Air Force , 120 M.S.P.R. 239, ¶ 6 (2013) (recognizing that substantial
evidence is a lesser standard of proof than preponderance of the evidence a nd, to
7 The administrative judge also observed that the Assistant Director, who was actively
serving as the appellant’s first -line supervisor by August or September 2012, was not
aware of pertinent aspects of the PIP, including the performance defici encies that led to
it or the specific requirements of it, until he received a copy of the PIP in
November 2012. ID at 15-17. According to the administrative judge, the approximate
44-day period after which the Assistant Director had a copy of the appella nt’s PIP letter
containing the exact requirements of the PIP was insufficient to afford the appellant a
reasonable opportunity to improve. Id. On remand, the administrative judge should
consider whether evidence regarding the existence of performance mee tings with the
Deputy Director and the appellant’s own admission that the Assistant Director “began
attending the PIP m eetings in mid -October,” is sufficient for the agency to meet its
burden to show that it provided the appellant with an opportunity to im prove. I-2 AF,
Tab 12 at 41.
11
meet this standard, the agency’s evidence need not be more persuasive than that
of the appellant).
¶18 To summarize, the appellant’s PIP ran for a lengthy period, between
July 2012 and January 2013. Among other things, the record includes testimony
from the AIC that she reviewed the appellant’s work on the DEC review project
throughout the PIP and provided feedback. HT at 10-11, 79, 101 (testimony of
the AIC). It also includes testimony from the Assistant Director and Deputy
Director that they regul arly met with the appellant and provided feedback. HT
at 160-61 (testimony of the Deputy Director), 340 -41 (testimony of the Assistant
Director). Their testimony is supported by the appellant’s testimony and
documentation showing work he produced during the PIP with critiques of that
work from both the AIC and the Assistant Director and specific instructions for
the appellant to make revisions. I-2 AF, Tab 22 at 21-29, Tab 23 at 4-36, Tab 24
at 4-24; HCD (testimony of the appellant, 8:55). Additionally, the record
includes a detailed memo memorializing an October 2012 meeting between the
appellant, the Assistant Director, and the AIC describing the appellant’s
deficiencies, specific areas of concern, and recommendations for moving forward.
I-2 AF, Tab 25 at 9-10. Subsequent messages memorialize a December 2012
meeting between the same individuals, also talking about areas of needed
improvement and corresponding resources. Id. at 5, 7. The record also includes
evidence of the appellant completing a num ber of training courses during the
relevant period, consistent with the agency’s promise that it would look for and
schedule training that would help improve his performance. Compare I-2 AF,
Tab 12 at 100, with I-2 AF, Tab 27 at 26.
¶19 On remand, the administrative judge should allow the parties to submit
additional argument and evidence regarding the PIP meetings, because she
hindered the parties’ ability to do so below. She must then issue new and
complete findings as to whether the a gency proved by substantial evidence that it
gave the appellant a reasonable opportunity to improve and demonstrate
12
acceptable performanc e. Among other things, those findings should consider and
address the evidence described above .
On remand, the admin istrative judge should make new findings as to whether the
agency met its burden of showing that the appellant’s performance
remained unacceptable.
¶20 In placing the appellant on the PIP, in July 2012, the agency explained that
his performance had fallen be low acceptable levels in seven core competencies
across all three of his critical elements. I-2 AF, Tab 12 at 84, 95, 99. In its
April 2013 proposal to remove him, the agency indicated that the appellant’s
performance remained unacceptable in three core competencies across two critical
elements. Id. at 71, 76 -80. Specifically, the agency determined that his
performance remained unacceptable for the “professional knowledge” core
competency and its parent critical element, “job knowledge and technical ski lls,”
as well as the “technical skills” and “analytical skills” core competencies and
their parent critical element, “application of job knowledge and technical skills.”
Id. at 76-79.
¶21 The administrative judge did not substantively address whether the
appellant’s performance remained unacceptable. Instead, the administrative judge
concluded that the agency failed to meet its burden for this criterion because the
appellant’s performance standards of record differed from the standards used for
his remova l. ID at 18-22. According to the administrative judge, those
inconsistencies were fatal to the agency’s case. Id. We disagree.
¶22 The appellant’s performance plan of record, as signed by the appellant each
year and further documented by the agency’s off icial performance appraisal
manual, identifies the critical elements of his position and defines four rating
levels. I-2 AF, Tab 13 at 6-17, Tab 17 at 4-26, Tab 26 at 10, 30 -31, Tab 27
at 16-24. Most relevant to this appeal, the plan defines the lowest t wo ratings as:
Fully Successful: The employee’s performance demonstrates
achievement of, or substantial progress toward, meeting the core
competencies. Employees must average a “2” or higher on the core
13
competencies identified within the Element in ord er to be rated Fully
Successful for the Element overall.
Unacceptable: The employee’s performance fails to demonstrate
achievement of or progress toward achievement of any one of the
core competencies within the Element; performance has a negative
conse quence on organizational goals. Employees must be rated
Unacceptable for the overall Element if any of the core competencies
are rated “1” within the Element.
I-2 AF, Tab 13 at 6, Tab 26 at 30-31.8 If an employee is unsuccessful in one or
more critical elements, his summary rating will likewise be unacceptable.
I-2 AF, Tab 13 at 6. Based on this performance plan, if all other chapter 43
requirements are met, a rating of “1” in any core competency would support a
performance -based removal. Id.; see Lee, 115 M.S.P.R. 533, ¶ 5; see also
Wallace v. Department of the Air Force , 879 F.2d 829 , 834 (Fed. Cir. 1989)
(recognizing that an appellant’s failure to meet a single component of one
critical element may be sufficient to justify removal for
unacceptable performance).
¶23 As the a dministrative judge correctly noted, the agency’s various
documentation and testimony contain some inconsistent or imprecise language in
describing the appellant’s performance and performance expectations. ID
at 18-22. For example, in one notation, the P IP provided the following: “[a]s
stated in your performance plan, in order for performance to be considered as
being at the Fully Successful level for a GS -12, you must generally and with
consistency meet the standards identified at the Fully Successful l evel.” I-2 AF,
Tab 12 at 85; ID at 17 n.11, 21 -22. However, that is not the language used in the
appellant’s performance plan. See supra ¶ 22. The statement is also circular,
8 The agency’s official performance appraisal manual provides different definitions for
different employees. I-2 AF, Tab 26 at 29-31. Based on that manual, the performance
of Office of Audit employees can be deemed “unacce ptable” based on a single core
competency, but employees in some other components can be deemed “unacceptable”
only if they are deficient in a majority of core competencies. Id. The appellant has
acknowledged that he was employed in the Office of Audit. IAF, Tab 1 at 2.
14
essentially warning that the appellant would not be fully successful unless he met
the fully successful standards. In another example, the Assistant Director’s
appraisal of the appellant after the PIP included a form on which he selected
ratings for each critical element and its corresponding core compe tencies.
I-2 AF, Tab 48 at 2-13; ID at 19-21. Although the Assistant Director completed
the form consistent with the appellant’s actual performance plan, in which failure
in a single core competency warranted an “unacceptable” rating for its parent
critical element, the form’s instructions described a performance standard that
did not apply.9 Compare I-2 AF, Tab 13 at 6, with I-2 AF, Tab 48 at 3-8.
¶24 Elsewhere, in the proposal to remove the appellant, the agency introduced
additional language. While dis cussing the “professional knowledge” core
competency, the proposal indicated that the appellant “more than occasionally
failed to demonstrate a complete understanding and knowledge of different parts
of a work paper.” I-2 AF, Tab 12 at 76; ID at 20. Howe ver, that language is not
in the appellant’s performance plan.
¶25 Although we appreciate the administrative judge’s concern for these and
other similar instances of the agency using inconsistent or imprecise language, as
well as the Assistant Director’s mis takenly using an inapplicable form, ID
at 18-22, we disagree that they are fatal to the agency’s case. The appellant’s
performance standards remained the same before, during, and after the PIP. The
agency is required to present merely substantial evidenc e that the appellant’s
performance remained unacceptable in one or more of the critical elements for
which he was provided an opportunity to demonstrate acceptable performance,
9 The form’s instructions provided that a critical element rating was based on the
majority of its core competencies. I-2 AF, Tab 48 at 3. That standard is consistent with
the performance standard for employees in offices other than the appellant’s. See supra
¶ 22 n.8. The administrative judge discussed the standard described on the form,
without acknowledging either that the standard a pplied to those other employees or that
the Assistant Director ignored those standards and properly completed the form
consistent with the appellant’s performance plan. ID at 19-20.
15
i.e., his “performance fail[ed] to demonstrate achievement of or progress towar d
achievement of any one of the core competencies within the Element;
performance ha[d] a negative consequence on organizational goals.”
I-2 AF, Tab 13 at 6; Lee, 115 M.S.P.R. 533, ¶ 5.
¶26 Because we are remanding this appeal, we do not make findings on whether
the agency met its burden to show the appe llant’s performance was unacceptable
while on the PIP. As the hearing officer, the administrative judge is in the best
position to make factual findings and detailed credibility assessments on this
issue. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 27 (2015).
If, after any additional evidence presented on remand, she finds that the agency
gave the appellant a reasona ble opportunity to improve and demonstrate
acceptable performance , she should make new findings as to whether the agency
met its burden to prove, by substantial evidence, that the appellant’s performance
remained unacceptable. These findings should be con sistent with our analysis ,
above, of this issue.
On remand, the administrative judge should make new findings as to the
appellant’s EEO reprisal claim .
¶27 As noted above, the administrative judge denied the appellant’s affirmative
defenses of retaliation for engaging in EEO activity , discrimination on the bases
of sex, race, and national origin, and disability discrimination on the basis of a
failure to accommodate . ID at 22-34. The appellant does not challenge these
findings on review. Nonetheless, we have reviewed the administrative judge’s
findings and discern no basis to disturb her findings regarding the appellant’s
race, sex, national origin , and disability discrimination claims.10
10 As the administrative judge considered the appellant’s claims of sex discrimination,
race discrimination, national origin discrimination, and EEO reprisal, she applied the
burden shifting scheme set out in Savage v. Department of the Army , 122 M.S.P.R. 612,
¶ 51 (2015) . ID at 23-24. Regarding the sex, race, and national origin discrimination
claims , the administrative judge found that the appellant failed to prove that any of
those considerations was a motivating factor in this removal action. ID at 31-34.
During the period that followed the initial decision, the Board found that, in order to
16
¶28 Turning to the appellant’s EEO activity, the administrative judge found that
the appellant proved that a prior discrimination claim was a motivating factor in
his removal, ID at 24-29, but the agency proved that it would have taken the same
removal action in the absence of that improper motive, ID at 29-31. During the
period that followed the initial decision in this appeal, the Board recognized that
although the motivating factor standard applies to claims of reprisal for engaging
in activity protected under Title VII, an appellant must prove but -for causation in
the fi rst instance for a claim of reprisal for engaging in activity protected under
the Americans with Disabilities Act Amendments Act of 2008. Pridgen v. Office
of Management & Budget , 2022 MSPB 31, ¶¶ 16, 21, 35 -40; Haas v. Department
of Homeland Security , 2022 MSP B 36, ¶ 32. Accordingly, the nature of the
appellant’s EEO activity is relevant, but the nature of that activity is not apparent
to us —the initial decision and numerous pleadings submitted by the parties
simply refer to the appellant’s EEO activity as discrimination claims, generally.
E.g., ID at 24-28; I-2 AF, Tab 61 at 24-28.
¶29 In issuing a remand initial decision, the administrative judge should make
new findings regarding the appellant’s EEO reprisal claim, applying the proper
standard or standards . We recognize that her analysis is, absent new evidence,
unlikely to alter her conclusion that the appellant’s affirmative defense of EEO
reprisal fails. See Pridgen , 2022 MSP B 31, ¶ 21 n.4 (noting that some courts
consider but -for standard to be more onerous) . Nonetheless, we find it
appropria te to remand this issue to the administrative judge to make findings in
the first instance.
attain full relief for claims arising under Title VII, the appellant must prove that
discrimination was a but -for cause of the action. Pridgen v. Office of Management &
Budget , 2022 MSPB 31 , ¶¶ 22, 42. Because the administrative judge found that the
appellant failed to prove that his sex, race, or national origin was a motivating factor in
his removal, an d the parties have not disagreed on review, we do not reach the question
of whether his sex, race, or national origin was a but -for cause of the removal action.
Id., ¶ 22.
17
On remand, if the agency meets its burden, the administrative judge should
consider the appellant’s h armful error claim.
¶30 Because she found that the agency faile d to meet its burden , the
administrative judge found it unnecessary to address the appellant’s claim of
harmful procedural error. ID at 22 n.12. The appellant alleged that his PIP used
the wrong performance standards and this resulted in a harmful error.
I-2 AF, Tab 29 at 17; see generally 5 C.F.R. § 1201.56 (b)(2)(i)(C) (recognizing
that an appellant bears the burden of proving harmful procedural error by
preponderant evidence); Stephen v. Department of the Air Force , 47 M.S.P.R.
672, 681, 685 (1991) (recognizing that an agency error is harmful only when the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error). If, on remand, the administrative judge finds the agency met
its burden, she sho uld make findings on the appellant’s harmful error claim.
¶31 In conclusion, we must remand the appeal in light of Santos . On remand,
the administrative judge shall accept argument and evidence on the issue of
whether the appellant’s performance was unaccep table prior to the agency placing
him on a PIP. The administrative judge should also permit the parties to present
evidence as to why some of the appellant’s PIP meetings ended early. She shall
hold a supplemental hearing if appropriate. See Lee, 2022 MSPB 11, ¶ 17.
The administrative judge shall then issue a new initial decision consistent with
Santos . See id.
¶32 If the agency makes the additional showing required under Santos on
remand, the administrative judge may incorporate her prior findings regarding the
agency proving that OPM approved its performance appraisal system, the agency
communicating to the appella nt his performance standards, and the validity of its
performance standards . See supra ¶ 5. The administrative judge should then
revisit her findings, consistent with our guidance above, regarding the agency’s
burden of proving that it gave the appellant a reasonable opportunity to improve
18
and demonstrate acceptable performance and that his performance remained
unacceptable. Supra ¶¶ 7-26. If the argument or evidence on remand regarding
the appellant’s pre -PIP performance and the reason some PIP meeting s ended
early affects the administrative judge’s analysis of the agency’s burden or the
appellant’s affirmative defenses, she should address such argument or evidence in
the remand initial decision , while also ensuring that the correct standard s are
applie d. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589
(1980) (explaining that a n 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 ); supra ¶ 27 n. 10, ¶ 28.
ORDER
¶33 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 | HOWELL_RICARDO_P_DC_0432_13_6622_I_2_REMAND_ORDER_1994137.pdf | 2023-01-18 | null | DC-0432 | NP |
3,794 | https://www.mspb.gov/decisions/nonprecedential/HARRIS_JUDALON_J_CH_0752_17_0303_I_1_FINAL_ORDER_1994144.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JUDALON J. HARRIS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-0752 -17-0303 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Judalon J. Harris , Anderson, Indiana, pro se.
Juliana B. Pierce , Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellan t has filed a petition for review of the initial decision, which
dismissed her appeal as settled. On review, the appellant argues that she properly
invoked her right to revoke her acceptance of the settlement agreement, the
agreement was the product of duress, and she suffers from a medical condition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 affects her memory. Generally, we grant petitions such as this one only in
the following circums tances: 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 r ulings 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. § 7703 (b).
Altho ugh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 After the record closed on review, the agency filed an additional pleading to correct an
erroneous assertion of fact made in its response to the appellant’s petition for review.
Petition for Review File, Tab 7. We have considered the agency’s additional pleading
and find that the matters discussed therein are not material to the outcome of this
appeal . 5 C.F.R. § 1201. 115(d).
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 f ile within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pet ition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1) (A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C . 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for in formation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you h ave a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 r equiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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
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, pe rmanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Cir cuit 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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
WASHINGTON, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARRIS_JUDALON_J_CH_0752_17_0303_I_1_FINAL_ORDER_1994144.pdf | 2023-01-18 | null | CH-0752 | NP |
3,795 | https://www.mspb.gov/decisions/nonprecedential/BLAIR_ADRIAN_E_DA_0752_16_0302_I_1_FINAL_ORDER_1994157.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ADRIAN E. BLAIR,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -16-0302 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adrian E. Blair , Grand Prairie, Texas, pro se.
Chau B. Phan , Salt Lake City, Utah , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appella nt has filed a petition for revie w of the initial decision, which
sustained his removal . On petition for review, the appellant challenges the
administrative judge’s findings regarding the charges and penalty as well as his
claims of harmful procedural error and retaliation for prior equal employment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
opportunity activity. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains e rroneous 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 a ppeal 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 petitione r’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 In his reply in support of the petition for review, the appellant has included
a portion of the agency’s handbook regarding misconduct when performing
research a nd asserts that, under the standards set forth therein, the charges cannot
be sustained. Petition for Review (PFR) File, Tab 4 at 12 -20. He also has
included evidence in support of his assertion that he is of good character in the
form of a 2007 certific ate indicating that he did not have a felony record, a
2015 college diploma, his current credit score, and information regarding
available credit as of May 2017. Id. at 2-11. Although the credit information and
credit score are new, none of the evidence is material to our determining whether
the agency properly imposed the removal , and thus we do not consider it.
5 C.F.R. § 1201.115 (d); see Cleaton v. Department of Justice , 122 M.S.P.R. 296 ,
¶ 7 ( 2015 ), aff’d , 839 F.3d 1126 (Fed. Cir. 2016).
¶3 The appellant also challenges the administrative judge’s impartiality. PFR
File, Tab 1 at 7. In making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
3
accompanies administrative adjudicators. Montgomery v. Department of Health
& Human Services , 123 M.S.P.R. 216, ¶ 13 n.4 (2016). The appellant has not
presented any specific evidence or argument in support of his claims and has thus
failed to overcome this presumption.
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 li mits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your part icular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEO C by regular U.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 requ iring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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/Cou rtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BLAIR_ADRIAN_E_DA_0752_16_0302_I_1_FINAL_ORDER_1994157.pdf | 2023-01-18 | null | DA-0752 | NP |
3,796 | https://www.mspb.gov/decisions/nonprecedential/ESHELMAN_DERICK_DC_0752_15_0222_I_2_FINAL_ORDER_1994160.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DERICK ESHELMAN,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DC-0752 -15-0222 -I-2
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan Green , Esquire, Washington, D .C., for the appellant .
Sandra Fortson , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt issues a separate concurring opinion.
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 14 -day suspension . For the reasons set
forth below, the agency’s petition for revie w is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 following facts are further detailed in the initial decision. The
appellant held the Fire Chief position at Royal Air Force Croughton (RAFC).
Eshelman v. Department of the Air Force , MSPB Docket No. DC-0752 -15-0222 -
I-1, Initial Appeal File (IAF), Tab 1 at 1; Eshelman v. Department of the Air
Force , MSPB Docket No. DC -0752 -15-0222 -I-2, Refiled Appeal File ( RAF ),
Tab 15, Initial Decision (ID) at 2.2 In 2013, the agency’s Office of Special
Investigations (AFOSI) opened an investigation after receiving a n anonymous tip
that the appellant was committing fraud. ID at 2. The AFOSI later concluded
that the appellant had knowingly scheduled firefighters to an improper work
pattern (embedded schedule) that allowed them to collect a higher rate of pay
from 201 0 through 2013, at a cost of approximately $263,000. Id.; IAF, Tab 8
at 95.
¶3 In July 2014, the agency proposed the appellant’s removal based on a single
charge of conduct unbecoming a Federal employee , with three corresponding
specifications. ID at 3; IAF, Tab 1 at 9 -11. The deciding official sustained the
removal action, effective November 2014. ID at 3; IAF, Tab 1 at 12 -13. The
appellant challenged his removal in the instant appeal. IAF, Tab 1 at 1 -6.
¶4 After holding the requested hearing, the admin istrative judge sustained the
lone charge along with each of the underlying specifications and found nexus, ID
at 3-13, but mitigated the removal to a 14 -day suspension, ID at 14 -19. The
agency has filed a petition for review, arguing that the administrat ive judge erred
in mitigating the penalty. Eshelman v. Department of the Air Force , MSPB
Docket No. DC-0752 -15-0222 -I-2, Petition for Review (PFR) File, Tab 1. The
appellant has filed a response, and the agency has replied. PFR File, Tabs 3 -5.
2 The administrative judge dismissed the initial appeal without prejudice for automatic
refiling at a later date, resulting in the two docket numbers associated with this one
matter. IAF, Tab 34.
3
ANALYSI S
¶5 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 aft er the party received the initial decision. Palermo v. Department of
the Navy , 120 M.S.P.R. 694 , ¶ 3 (2014); 5 C.F.R. § 1201.114 (e). The Board will
waive the time limit for filing a petition for review only upon a showing of good
cause for the delay in filing. Palermo , 120 M.S.P.R. 694 , ¶ 4. The party who
submits an untimely petition for review has the burden of establishing good cause
for the untim ely filing by showing that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Id. To determine
whether a party has shown good cause, the Board will consider the length of the
delay, the reasonableness of his e xcuse and the party’s sho wing of due diligence,
whether he is proceeding pro se, and whether he has presented evidence of the
exist ence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to his inabil ity to timely file his petition. Id.
¶6 In this case, because the initial decision was issued on July 22, 2016, the
petition for review was due by August 26, 2016. ID at 22; see Palerm o,
120 M.S.P.R. 694 , ¶ 3; 5 C.F.R. § 1201.114 (e). The agency filed its petition
through the Board’s e -Appeal system on August 27, 2016, at approximately
12:13 a.m., several minutes after the deadline for doing so. PFR File, Tab 1.
Because the filing appeared untimely, the Board’s e -Appeal system automatically
generated questions concerning timeliness, to which the agency ’s representative
responded as follows:
The PFR was filed prior to the deadline, but did not file. Instead,
when I went to the logged on [sic] to submit the attachments, it had
not been filed. Th e second attempt to file it with the documents
resulted in the same problem. It appeared that the documents were
being filed, but again, they were not filed. The final attempt resulted
4
in the documents being untimely. A check of [e -Appeal] will verify
that the documents were timely filed.
Id. at 4.3
¶7 The Clerk of the Board issued an acknowledgment letter, instructing the
agency that an untimely petition for review must be accompanied by a motion to
either accept the filing as timely, and/or waive the time limit for good cause.
PFR File, Tab 2 at 1 (ci ting 5 C.F.R. § 1201.114 (g)). The letter further instructed
the agency that if it wanted to file the aforementioned motion, the agency must
include a statement signed under penalty of p erjury or an affidavit showing that
the petition was either timely or good cause existed for the untimeliness. Id.
at 1-2. It also included a form for doing so, and provided a deadline of
September 23, 2016. Id. at 7-8.
¶8 Despite the instructions containe d in the acknowledgment letter, the agency
did not submit a separate sworn statement, affidavit, or further explanation for the
untimely filing by the September 23, 2016 deadline. Instead, in its October 1,
2016 reply brief, the agency argued that it had presented good cause. PFR File,
Tab 4 at 4 -8. With that reply brief, the agency also submitted a complaint filed
with the Board’s Tech nical Support Team , where the agency reported attempting
to file the petition at least twice within the 20 minutes leadi ng up to the deadline
for doing so, but having problems doing so.4 Id. at 18 -19.
¶9 A review of the Board’s e -Appeal logs shows that the agency did access the
system to start the process of filing a pleading on August 26, 2016, at 11:38 p.m.
However, they d o not reflect any attempt to submit the pleading until August 27,
2016, at 12:13 a.m. The logs reflect one error, but that error occurred after the
3 The agency’s representative answered “yes” to whether she declared, under penalty of
perjury, the facts asserted regarding the timeliness of the petition. PFR File, Tab 1 at 4.
4 The agency described the problem t o the Board’s Tech nical Support Team citin g both
August 22, 2016, and August 26, 2016, as the dates of attempted fi ling. PFR File,
Tab 4 at 18. However, i t appears that the reference to August 22, 2016, was a
typo graphical error .
5
filing deadline, and was caused by the agency attempting to submit the petition a
second time within second s of the 12:13 a.m. submission, while the initial
submission was still processing.
¶10 In considering allegations that an untimely filing was caused by technical
difficulties, the Board has reached differing conclusions based on the particular
circumstances of each case. Compare Boykin v. U.S. Postal Service ,
104 M.S.P.R. 460 , ¶ 6 (2007) (excusing a 1 -day delay in filing whe n an
appellant’s representative reported making multiple attempts to timely file and
the Board’s records reflected a high incidence of users reporting problems with
the e -Appeal system during the date in question), Wiggins v. Department of the
Air Force , 113 M.S.P.R. 443 , ¶¶ 7, 9 (2010) (excusing a petition that was
untimely by 4 minutes when the appellant was pro se and had attempted to create
a new pl eading four times in the days leading up to his untimely filing), and
Social Security Administration v. Price , 94 M.S.P.R. 337 , ¶ 7 (2003) (finding that
the agency exercised due diligence and showed good cause for filing a petition
for review 34 minutes late when its attorney submitted a sworn statement
indicating that she began sending the petition prior to the filing deadline but had
technical problems with a fax machine), aff’d , 398 F.3d 1322 (Fed. Cir. 2005),
with Palermo , 120 M.S.P.R. 694 , ¶¶ 5-10 (declining to excuse a 7 -day delay for
claimed difficulties with e -Appeal when , inter alia, the appellant’s representative
was familiar with e -Appeal and failed to submit a motion showing good cause),
and Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 6 (2014)
(declining to excuse a petition that was untimely by 3½ hours when the petitioner
failed to establish a good reason for the delay). Under the particular
circumstances of this case, we find that the agency has failed to establish good
cause for its untimely petition .
¶11 Although the agency’s petition for review was untimely by mere minutes,
we are not persuaded by the explanation provided. The agency’s representative is
familiar with the e -Appeal system, having used it throughout this appeal. E.g.,
6
IAF, Tab 3. She is also familiar with the potential consequences of her
untimeliness, having been sanctioned for her untimeliness below. Hearing
Transcript 2 (HT2) at 5 -11.5 Nevertheless, the Board’s e -Appeal logs indicate
that she did not log into the system to begin the process of filing the petition for
review until 11:38 p.m. on the day it was due. See generally Baker v. Department
of Justice , 41 M.S.P. R. 25 , 27 (1989) (recognizing that if a party delays the filing
of a petition until the eleventh hour, that party bears the risk that unforeseen
circumstances could prevent the timely filing of that petition). Moreover, as
detailed above, although the age ncy asserts that there were two failed attempts at
filing the petition before the deadline to do so, the Board’s e -Appeal logs reflect
otherwise. PFR File, Tab 2 at 1 -2, 7-8; supra ¶ 9.
¶12 Accordingly, we dismiss the petition for review as untimely filed. T his is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the agency’s removal action .
5 The agency’s lack of timeliness was a persistent issue below. Among other things, the
agency’s representative failed to submit the agency file until more than 2 weeks after
the deadline for doing so, indicating that it was an unintentional error stemming from a
misplaced ema il. Compare IAF, Tab 2 at 7, with IAF Tab 5 at 1 -2. She also waited
until the afternoon before the original hearing date to reschedul e, citing difficulties
obtaining video -teleconference connectivity for certain witnesses, after the appellant
had already travelled from Illinois to Washington, D.C. for the hearing . IAF,
Tabs 25, 29. In another instance, the agency’s representative failed to respond to
emails and motions from opposing counsel in a timel y manner, reporting that technical
problems prevented her from accessing email for a full week. Compare RAF , Tab 1
at 4, 7, Tab 2 at 4, 8, with RAF , Tab 4 at 1. Lastly, she was untimely for each of the
rescheduled hearing days, citing car troubles, traffic, trouble finding parking, and rain,
for which the administrative judge issued sanctions in the form of precluding the
agency from cross examining certain witnesses. HT2 at 5 -11.
7
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included i n final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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).
If so, and your judicial petition for review “raises n o challenge to the Board’s
10
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appe als
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Ci rcuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney no r 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 competen t jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with t he U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
CONCURRING OPINION O F TRISTAN L. LEAVITT
in
Derick Eshelman v. Department of the Air Force
MSPB Docket No. DC -0752 -15-0222 -I-2
¶1 I concur in the opinion of the Board that the agency’s petition for review
should be dismissed as untimely filed without good cause shown. Although the
initial decision is therefore the final decision of the Board, see 5 C.F.R.
§ 1201.113 (b), I write separately to express my disagreement wi th the
administrative judge’s determination to mitigate the penalty of removal to a
14-day suspension.
¶2 The agency removed the appellant from his GS -12 Fire Chief position at
Royal Air Force (RAF) Croughton based on a charge of conduct unbecoming a
Federal employee. See MSPB Docket No. DC-0752 -15-0222 -I-1, Initial Appeal
File (IAF), Tab 1 at 9. In essence, the agency determined that for nearly 3 years,
the appellant worked, and allowed his subordinate empl oyees to work, an
unauthorized schedule that resulted in salary overpayments, even after being told
this schedule was unauthorized. See id. The administrative judge found the
agency proved its charge, including all specifications, by preponderant evidenc e.
Initial Decision (ID) at 3-13. He also found a nexus between the sustained
misconduct and the efficiency of the service. ID at 13-14. I agree with
these findings.
¶3 In mitigating the penalty, the administrative judge relied on several factors.
First, he considered that a Fire Chief at another RAF —RAF Alconbury —“utilized
the embedded schedule for himself, and at least two others, until June 2012,” but
was not disciplined. ID at 15-18. The deciding official testified there were no
comparable cases under his command at RAF Croughton. Hearing Transcript
(June 22, 2016) (HT1) at 45; see also IAF, Tab 8 at 31 (the deciding official
2
stating on his Douglas factors worksheet, “I have no other cases to compare with
this one”). While the deciding official “ had heard the rumor . . . that there were
other potential violations of this nature” at other bases, he was “not the
commander at those locations” and was “not familiar with what they would have
or could have done” or “how they handled that discipline.” H T1 at 45; see also
id. at 87 (“I have no understanding of who the other personnel were or who
would’ve been using the schedule. I just heard that Alconbury in general was
using the schedule.”). The relevant inquiry is whether the agency knowingly and
unjustifiably treated employees differently. Singh v. U.S. Postal Service ,
2022 MSPB 15, ¶ 14. A person generally does not have a le gally protected
interest in the evenness of a misconduct penalty assessed on him as compared to
others, and there is a possible exception to this rule only if employees are
knowingly treated differently. Facer v. Department of the Air Force ,
836 F.2d 535, 539 (Fed. Cir. 1988); Rogers v. Department of Defense Dependents
Schools , 814 F.2d 1549 , 1555 (Fed. Cir. 1987) (explaining that “[d]isparate
treatment requires that employees knowingly be treated differently” and
considering that even if other employees had performance deficiencies simil ar to
the appellant’s, there was no evidence that the deciding official was aware of
such deficiencies). Given the deciding official’s undisputed lack of knowledge
regarding potential comparator employees outside his authority ,1 I do not believe
it was appropriate for the administrative judge to consider this employee for
mitigation purposes.
¶4 Second, the administrative judge found the agency “failed to show by
preponderant evidence that the appellant deliberately disregarded the rules as he
1 The appellant asserts he was “in th e same chain of command” as the RAF Alconbury
comparator because “the 501 Wing and its ultimate commander had responsibilities
over both Croughton and Alconbury.” Petition for Review File, Tab 3 at 14. However,
the deciding official was not the wing commander. Rather, as the group commander, he
was subordinate to the wing commander, and was only responsible for three
installations (RAF Croughton, RAF Fairford, and RAF Welford). HT1 at 11-13, 149.
3
understood them simply to enrich himself and his coworkers.” ID at 18. This
conclusion relied in part on the administrative judge’s demeanor -based credibility
finding concerning the appellant’s testimony on this point. ID at 18-19. The
Board will overturn such de terminations only when it has sufficiently sound
reasons to do so. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002). I would overturn the administrative judge’s credibility finding
because it is wholly inconsistent with the appellant’s own prior admissions. See
Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). The
administrative judge also found the agency “failed to prove by preponderant
evidence that the appellant’s use of the embedded schedule cost the agency more
money than it would ha ve cost had the appellant used an appropriate schedule.”
ID at 19. Again, this finding is inconsistent with the appellant’s own
prior admissions.
¶5 Specifically, in a signed, sworn statement, the appellant averred:
Although I felt I had good reasons to work the embedded schedule,
the extra money earned from the additional time worked was a
benefit that was part of the decision. The money aspect made it
worth doing all the extra hours and is and was simply the wrong
thing to do. I truely [sic] regret costing the Air Force the additional
money . . . I should have listened to those around me and those
trying to help get me on the right path.2
IAF, Tab 8 at 148. He acknowledged that by fall 2012, he “understood [the
embedded schedule] was not a schedule desired to be used for Air Force
firefighters,” but “[t]he extra hours and money would be nice.” Id. at 150. In
light of the foregoing admissions, I would find preponderant evidence supports
the deciding official’s c onclusion that “ the unauthorized schedule was
intentional . . . the decision to repeat the mistake was made over several years,
2 The deciding official testified this statement “definitely impacted” his decision
because it “showed that [the appellant] acknowledged that there was a money impact to
his personal benefit.” HT1 at 42-43.
4
even when others (such as the Air Force Chief or other functional experts)
continued to indicate that this was not right .” Id. at 29-30.
¶6 Third, the administrative judge noted that the appellant “had approximately
20 years of positive service with the agency, having received performance awards
and good performance reviews, and having no prior disciplinary record.” ID
at 19. The deciding official explicitly considered the appellant’s “good work for
over 20 years” and the fact that he had “no documented disciplinary actions ,” but
apparently found those factors insufficient to outweigh the seriousness of the
appellant’s misconduct . IAF, Tab 8 at 31. I discern no error with that approach.
Indeed, the Board has frequently stated that the nature and seriousness of the
offense, and its relation to the employee’s duties, position, and responsibility, is
the most important factor in a ssessing the reasonableness of a penalty. Singh ,
2022 MSPB 15, ¶ 18. The deciding official noted: “The offense of working
longer hours than authorized is a very serious one.” IAF, Tab 8 at 29. He
considered the appellant’s supervisory role, finding “ the level of trust required to
be a manager and supervisor of other fire fighters has been tarnished
significantly” and that the appe llant “cannot continue to service in the leadership
role because his trustworthiness is in question .” Id. at 31-32; see HT1 at 26
(deciding official testifying, “there is a high degree of seriousness because of how
we manage our fire department, the numbe r of people involved, and the
perspective within the community”); see also Edwards v. U.S. Postal Service ,
116 M.S.P.R. 173, ¶ 14 ( 2010) (stating that agencies are entitled to hold
supervisors to a higher standard because they occupy positions of trust and
responsibility) . I would defer to the deciding official’s determination concerning
the seriousness of the sustained misconduct, i n relation to the appellant’s
supervisory role.
¶7 Fourth, the administrative judge concluded the appellant demonstrated
rehabilitative potential because he was honest with investigators and expressed
remorse for his actions. ID at 19. This is directly contrary to the deciding
5
official’s determination that the appellant “ha[d] no chance of rehabilitation at
RAF Croughton” because he held such a prominent position, and his offense was
notorious “throughout all the US -led fire department s in the United Kingdom”
and “promulgated a poor reputation for the Croughton fire department.” IAF,
Tab 8 at 32. “[T]he rumor about this was fairly pervasive.” HT1 at 29 (testimony
of the deciding official). The deciding official testified, “[S]ince w e are a small
fire department area, there was zero potential for rehabilitation at this location.
Since we are overseas, then basically the only thing to do was to dismiss him.”
HT1 at 27. The deciding official also found problematic that the appellant did not
apologize for his actions until he was under investigation. HT1 at 135-38; see
Wynne v. Department of Veterans Affairs , 75 M.S.P.R. 127, 137 (1997) (the
appellant’s “belated, lukewarm expression of remorse” was insufficient to show
rehabilitative potential and did not constitute a significant mitigating factor) . He
considered whether the appellant could be demoted to a nonsup ervisory position
and concluded, “When a supervisor makes a mistake, to basically move them
down to a worker bee level . . . that would not be conducive to good order of
discipline and the morale of the fire department that I had here.” HT1 at 27-28,
152, 168-73; see also IAF, Tab 8 at 33 (Douglas factors worksheet indicating the
deciding official “considered potential reduced punishments,” but concluded
these other options “would send an inappropriate signal of the expectation to
maintain high standards”) .
¶8 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. “Mitigation of a penalty by the Board is only
appropriate where the agency failed to weigh the relevant factors, or the agency’s
judgment clearly exceeded the limits of reasonableness.” Lopez v. Department of
the Navy , 108 M.S.P.R. 384, ¶ 22 (2008). The letter of decision, as supplemented
by the deciding official’s hearing testimony, demonstrates that he properly
considered the relevant factors, and that removal was within of the tolerable
6
limits of reasonableness in this case . Under these circumstances, the agency’s
penalty determination is entitled to deference. Accordin gly, I believe the
agency -imposed penalty s hould not have been disturbed.
/s/
Tristan L. Leavitt
Member | ESHELMAN_DERICK_DC_0752_15_0222_I_2_FINAL_ORDER_1994160.pdf | 2023-01-18 | null | DC-0752 | NP |
3,797 | https://www.mspb.gov/decisions/nonprecedential/CREWS_ANITA_DC_531D_17_0339_I_1_FINAL_ORDER_1994181.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANITA CREWS,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
DC-531D -17-0339 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anita Crews , Fort Washington, Maryland, pro se.
Margaret Baldwin , Esquire, and Richard A. Marchese , Esquire,
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
affirmed the agency’s decision denying her within -grade increase. On petition for
review, the appellant disputes the administrative judge’s findings and generally
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
argues that the agency witnesses did not testify credibly. 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 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEO C 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 requ iring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 jurisd iction.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 revie w to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about th e U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representati on
for Merit Systems Protection Board appellants before the 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 o f appeals can be 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 | CREWS_ANITA_DC_531D_17_0339_I_1_FINAL_ORDER_1994181.pdf | 2023-01-18 | null | DC-531D | NP |
3,798 | https://www.mspb.gov/decisions/nonprecedential/BROOKS_DAVID_DA_3443_17_0032_I_1_FINAL_ORDER_1994188.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID BROOKS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-3443 -17-0032 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Brooks , Miami, Florida, pro se.
Lisa Marie Ezra , Esquire, 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
dismissed the appeal of his termination for lack of jurisdiction . On petition for
review, the appellant argues that he was not required to serve a trial period in his
Federal Career Intern Progra m (FCIP) position because his prior service 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
agency is eligible for tacking, the agency failed to notify him of the effect that
accepting the FCIP position would have on his Board appeal rights, his FCIP
position had already been converted to a car eer-condition al position in the
excepted service at the time of his termination, and the agency’s action was the
result of prohibited 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 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
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
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 decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROOKS_DAVID_DA_3443_17_0032_I_1_FINAL_ORDER_1994188.pdf | 2023-01-18 | null | DA-3443 | NP |
3,799 | https://www.mspb.gov/decisions/nonprecedential/LARSEN_MICHAEL_T_SF_0752_16_0301_I_1_FINAL_ORDER_1994227.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL T. LARSEN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0301 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael T. Larsen , Yucca Valley, California, pro se.
Tracey Rockenbach , 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 a ppellant has filed a petition for review of the initial decision, which
affirmed his removal . For the reasons set forth below, the appellant’s petition for
review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.11 4(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 On September 8, 2016, the administrative judge issued an initial decision
that affirmed the agency’s removal action . Initial Appeal File (IAF), Tab 36,
Initial Decision (ID) at 1. He notified the appellant that the initial decision would
become the Board’s final decision on October 13, 2016, unless a petition for
review was filed by that date. ID at 62. He also i nformed the parties that ,
pursuant to 5 C.F.R. § 1201.114 (h), the length of a petition for review is limited
to 30 pages or 7500 words, whichever is less, and that a request for leave to file a
pleading that exceeds such limitations must be received by the Clerk of the Board
at least 3 days before the filing deadline. ID at 64.
¶3 The appellant attempted to file a 128-page petition for review on
October 13, 2016 . Petition for Review (PFR) File, Tab 1 at 1. However, because
the petition for review was noncomp liant with the Board’s 30 -page length
limitation, the Clerk of the Board rejected it and allowed the appellant to file a
perfected petition for review by October 21, 2016. Id. The Clerk of the Board
explained in the rejection letter that, if a petition for review was not filed by that
date, the September 8, 2016 initial decision would remain the final decision of the
Board. Id.
¶4 Nearly 1 month past the October 21, 2016 deadline, the appellant filed a
perfected petition for review on November 17, 2016, along with a declaration and
a statement addressing the untimeliness of the submission. PFR File, Tab 2. In
an acknowledgment letter, the Clerk of the Board informed the appellant that his
petition for review was untimely filed and th at he could file a motion with the
Board to accept his filing as timely or to waive the time limit for good cause .
PFR File, Tab 3 at 1-2. The appellant thereafter filed a motion to accept his
petition for review as timely filed or to waive the time limi t, and he submitted a
new version of the petition for review, a declaration, and a copy of an email
exchange between him and the agency representative . PFR File, Tab 4. The
agency f iled a response arguing, in part, that the appellant failed to show good
cause for the untimely petition for review . PFR File, Tab 5 at 5-6.
3
¶5 The appellant asserts in his motion and declaration that he did not receive
the Clerk of the Board’s rejection letter until he checked the Repository at
e-Appeal Online on November 16, 20 16. PFR File, Tab 4 at 4-5, 33-34. He
further alleges that he demonstrated due diligence by perfecting his petition for
review within 24 hours of receiving notice of the rejection letter . Id. at 7. He
does not challenge the rejection of his initial petition for review , which we find
was clearly noncompliant because it vastly exceeded the 30 -page limitation that
he was notified of in the initial decision . Id. at 5, 34.
¶6 The Clerk of the Board’s rejection letter clearly notified the appellant that a
perfected petition for review had to be filed by October 21, 2016. PFR File,
Tab 1. We reject the appellant’s assertion that he did not receive the rejection
letter until November 16, 2016. The Board’ s regulations provide that a registered
e-filer, like the appellant , agree s to accept documents through electronic service
and is required to monitor his case activity at the Repository at e -Appeal Online
to ensure that he receive s all case -related documents. IAF, Tab 1 at 2; Rivera v.
Social Security Adminis tration , 111 M.S.P.R. 581 , ¶ 5 (2009); 5 C.F.R.
§ 1201.14 (e)(1), (j)(3). They further provide that pleadings and Board documents
served electronically on registered e -filers are deemed received on the date of
electronic submission. Rivera , 111 M.S.P.R. 581 , ¶ 5; 5 C.F.R. § 1201.14 (m)(2).
When a statute or regulation “deems” something to have been done, the event is
cons idered to have occurred whether or not it actually did. Rivera , 111 M.S.P.R.
581, ¶ 5. Thus, we deem the appellant to have receiv ed the rejection letter on
October 14, 2016, and his perfected petition for review was, therefore, untimely
filed by nearly 1 month. PFR File, Tab 1 at 3.
¶7 The Board will waive the time limit for filing a petition for review only
upon a showing of good cau se for the delay in filing. 5 C.F.R. § 1201.114 (f)-(g).
To establish good cause for the un timely filing, a party must show that he
exercised due diligence or ordinary prudence under th e particular circumstances
of the case. See Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184
4
(1980). To determine if an appellant has shown good cause, the Board will
consider the length of the delay, the reasonableness of his excuse and his showing
of due diligence, whether he is proceeding pro se, and whether he has presented
evidence of the existence of circumstances beyond his control that affected his
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to his inability to timely file his
petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995),
aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8 We find that the appellant has not demonstrated good cause for th e untimely
filing of his petition for review. His nearly 1 -month delay in filing is not
insignificant. See, e.g. , Floyd v. Office of Personnel Management , 95 M.S.P.R.
260, ¶ 6 (2003) (finding a 1 -month delay not minimal); Crozier v. Department of
Transportation , 93 M.S.P.R. 438 , ¶ 7 (2003) (finding a 13 -day delay not
minimal). Although the appellant is pro se, he is an attorney experienced with
legal matters and familiar with Board procedures as a former agency
representative . PFR File, Tab 5 at 26 -29. Moreov er, his argument that he did not
receive the rejection letter until after the deadline had passed is not a reasonable
excuse and does not establish that he exercised due diligence in monitoring his
case as required under the Board’s regulations . See Rivera , 111 M.S.P.R. 581 ,
¶ 7 (finding that the appellant fa iled to show that he exercised due diligence in
monitoring his case as a registered e -filer) ; 5 C.F.R. § 1201.14 (j)(3). In addition ,
the administrative judge notified the appellant of the Board’s length limitations
for a petition for review and of the need to request a waiver of such limitations at
least 3 days before the filing deadline. ID at 64 ; see Mendoza v. Merit Systems
Protection Board , 966 F.2d 650 , 653 (Fed. Cir. 1992 ) (en banc); Morris v.
Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 (2016) (finding that “[l]itigants
before the Board are expected to comply with all orders issued by the Board and
to comply with the Board's regulations”) .
5
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Prote ction Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) an d 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you rec eive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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, 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.
9
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 | LARSEN_MICHAEL_T_SF_0752_16_0301_I_1_FINAL_ORDER_1994227.pdf | 2023-01-18 | null | SF-0752 | NP |
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